Fleming v. Mulhall

• Decision Date: 11 May 1880
• Citation: 9 Mo.App. 71
• Parties: GEORGE FLEMING, Respondent, v. JOSEPH MULHALL ET AL., Appellants.
• Court: Missouri Court of Appeals

9 Mo.App. 71

GEORGE FLEMING, Respondent,

v.JOSEPH MULHALL ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

May 11, 1880.

1. A de facto officer is one who has the reputation of being, but who in law is not, an officer.

2. A justice who, denying the validity of an act which ousts him before the expiration of the term for which he was elected, holds over after a successor has been elected, and continues to exercise the functions of a justice, is a de facto justice, and so far as the public and third parties are concerned, his judicial acts are valid.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

H. B. O'REILLY, for the appellants: There can be no de facto officer without a de jure office.-- Ex parte Snyder, 64 Mo. 59.

OVERALL, JUDSON & TUTT, for the respondent, cited: The State ex rel. v. Sutton, 3 Mo. App. 402; Adams v. Lindell, 5 Mo. App. 202; Harbaugh v. Winsor, 38 Mo. 327; The State v. Douglass, 50 Mo. 593.

BAKEWELL, J., delivered the opinion of the court.

This action was commenced on November 1, 1878, before Cunningham, a justice of the peace in the city of St. Louis. After continuances, there was judgment for plaintiff on November 30, 1878. On appeal and trial anew in the Circuit Court, at the close of plaintiff's case, defendant moved to dismiss for want of jurisdiction in the justice, and offered to prove that “at the time J. C. N. Cunningham tried this cause, the justices elected for the new judicial districts for justice of the peace for the city of St. Louis under the law of 1877, had been duly elected, and were then duly qualified, and acting within said city; plaintiff admitting that said Cunningham had not been so elected, claiming simply that he was holding over in good faith, believing the law of 1877 to be unconstitutional; and defendant having admitted, in connection with his offer to prove as above, that at the time this suit was tried said Cunningham was holding over in good faith, claiming honestly to be entitled to the office, and at the time exercising the jurisdiction of a justice.” The court overruled the motion, and rendered judgment for the plaintiff.

It is well settled that the acts of an officer de facto, whether judicial or ministerial, are valid so far as the rights of the public, or of third parties having an interest in such acts are concerned.

An officer de facto is distinguished from a mere usurper on the one hand, and from an officer de jure on the other. “He is,” says Lord Raymond, “one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.” Parker v. Kett, 1 Ld. Raym. 658.

It is sometimes said that in order that the acts of one acting as an officer without legal right may be held valid as to the public and third persons,--as, the acts of an officer de facto,--he must have color of title; that is, color of election or appointment by the only body which has power to elect or appoint him. But in The State v. Carroll, 38 Conn. 449 the English and American cases are carefully examined, and it is shown that this is not always necessary. The essential thing seems to be that the unlawful officer whose acts are validated from public policy, should have exercised the duties of the office under such circumstances of reputation or acquiescence as were calculated to induce persons without inquiry to submit to, or invoke his action, supposing him in good faith to be the officer he assumed to be. So, we held in The...