Hamlin v. Kassafer

CourtSupreme Court of Oregon
Writing for the CourtLORD, C.J.
Citation15 Or. 456,15 P. 778
Decision Date28 November 1887
PartiesHAMLIN v. KASSAFER and others.

15 P. 778

15 Or. 456

HAMLIN
v.
KASSAFER and others.

Supreme Court of Oregon

November 28, 1887


Appeal from circuit court, Jackson county; L.A. WEBSTER, Judge.

This action was brought by James Hamlin, plaintiff, against the defendants, Frank Kassafer, a constable, and others, to recover personal property alleged to have been wrongfully taken in execution under a judgment recovered before one exercising and performing the functions of a justice of the peace. Judgment was rendered for the defendants in the court below, whereupon plaintiff brought this appeal.

W.R. Andrews, for appellant.

[15 Or. 457] H.K. Hanna, for respondents.

LORD, C.J.

This action was brought by the plaintiff against the defendants to recover certain personal property alleged to have been wrongfully taken. The defendants admitted the taking, but justified in substance to this effect: That on the twenty-eighth day of September, 1887, the defendant Carlton recovered a judgment in a justice's court before one E.D. Foudroy, against the plaintiff, Hamlin, for the sum of $80 and costs; that execution was issued thereon, and placed in the hands of the defendant Kassafer as constable, and that the property aforesaid was seized and taken into custody under the same, etc. The plaintiff denied the recovery of the judgment in the said justice's court, or in any court, etc. Upon issue being thus joined, the issue raised was as to the validity of said judgment.

The evidence as disclosed by the bill of exceptions is, in substance, that one E.D. Foudroy had been elected justice of the peace for the precinct of Jacksonville at the general election in 1884, and had entered upon the discharge of the duties of his office; that, at the general election in 1886, Foudroy was again a candidate for that office, but was defeated by one G.A. Hubbel, who received the certificate of election, and duly qualified, and that he demanded of the said Foudroy the possession of said office, its docket, and books thereunto belonging, but that Foudroy refused to surrender the same, and continued to exercise and perform the functions of the said office; that thereafter, and at the time of the rendition of the said judgment by the said Foudroy, he was in possession of said office in which he had held court as a justice of the peace, and of the docket and books, and also a sign at the door notifying the public he was such officer; that the defendant Hubbel, when said judgment was rendered, was in possession of the town hall, and had acted as, and performed the duties and functions of, a justice of the peace, and that these matters were open and notorious; but the evidence indicates that these acts were performed in his official character as a city recorder, by virtue of which he was ex officio justice of the peace; that the defendant Carlton, at the time of [15 Or. 458] the recovery of said judgment, was a resident of Medford, and had no knowledge of any dispute as to who was justice of the peace. Upon this state of facts, the court gave several instructions, which were excepted to, and refused to give another, which constitutes the main source of grievance, and from which it is evident that the plaintiff sought to have the court instruct the jury that the defendant Foudroy was a mere usurper when the judgment was rendered by him.

It is admitted, therefore, that this record presents only one question,--was Foudroy a de facto officer? Upon this point there would seem to be a little room for controversy; for conceding, as was argued, that Hubbel, by reason of official duties performed at the town hall, was reputed to be a justice of the peace, it by no means follows that their acts operated to displace Foudroy, and induct him into the possession of the disputed office. To render the judgment void, Foudroy must have presumed to act without any just pretense or color of title. As this is the contention of counsel for the plaintiff, it may not be amiss to note, preliminarily, some distinctions as to officers which will render the law applicable to the facts in hand more evident.

An office has been defined to be a right to exercise a public function or employment, and to take the fees and emoluments belonging to it; and Chief Justice MARSHALL says: "He who performs the duties of that office is an officer." From the inherent nature of an office, no less than from reasons of public policy, there cannot be two persons in the possession of an office at the same time. It becomes important, then, to observe the distinction between an officer de jure and an officer de facto. Lord ELLENBOROUGH said: "One [15 P. 780] who has the reputation of being the officer he assumed to be, and yet is not a good officer in point of law," is an officer de facto. King v. Bedford Level, 6 East, 356. To constitute a person an officer de facto, he must be in the actual possession of the office, and in the exercise of its functions, and in the discharge of its duties. When this is the fact, necessarily there can be no other incumbent of the office. An officer de jure is one who has the lawful right to the office, but who has either been ousted from, or never actually taken possession[15 Or. 459] of, the office. When the officer de jure is also the officer de facto, the lawful title and possession is united; then no other person can be an officer de facto for that office. "Two persons cannot be officers de facto for the same office at the same time." McCahon v. Commissioners, 8 Kan. 442; Boardman v. Halliday,...

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40 practice notes
  • Carey v. Lincoln Loan Co., 9706-04753; A117696.
    • United States
    • Supreme Court of Oregon
    • December 28, 2005
    ...actions of an officer de facto are valid as to the public and third persons and are not subject to collateral attack. Hamlin v. Kassafer, 15 Or. 456, 463-64, 15 P. 778 (1887); see also State ex rel Madden, 207 Or. at 89-90, 295 P.2d 174 (discussing acts of judge de facto); Holman et al. v. ......
  • Ridout v. State
    • United States
    • Supreme Court of Tennessee
    • July 14, 1930
    ...Neil approves and adopts this statement of the rule, laid down by the Supreme Court of Oregon in the leading case of Hamlin v. Kassafer, 15 Or. 456, 15 P. 778, 3 Am. St. Rep. 176, a case of holding over by a judge of an inferior court after expiration of his term: "The color of right which ......
  • City of Terre Haute v. Burns, No. 9279.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 19, 1917
    ...471, 9 Am. Rep. 409; In re Burke, 76 Wis. 357, 45 N. W. 24;McVeany v. Mayor, etc., 80 N. Y. 185-195, 36 Am. Rep. 600;Hamlin v. Kassafer, 15 Or. 456, 15 Pac. 778, 3 Am. St. Rep. 176;Warden v. Bayfield Co., 87 Wis. 181, 58 N. W. 248; Town of Plymouth v. Painter, 17 Conn. 585-589, 44 Am. Dec. ......
  • Waite v. City of Santa Cruz, 12,094.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 29, 1898
    ...of an office performing its duties they have a right to rely upon his acts as done by virtue of his office.' In Hamlin v. Kassafer, 15 Or. 456, 15 P. 778, it was held that a justice of the peace who continued in the discharge of the duties of such office after the expiration of the legal te......
  • Request a trial to view additional results
40 cases
  • Carey v. Lincoln Loan Co., 9706-04753; A117696.
    • United States
    • Supreme Court of Oregon
    • December 28, 2005
    ...actions of an officer de facto are valid as to the public and third persons and are not subject to collateral attack. Hamlin v. Kassafer, 15 Or. 456, 463-64, 15 P. 778 (1887); see also State ex rel Madden, 207 Or. at 89-90, 295 P.2d 174 (discussing acts of judge de facto); Holman et al. v. ......
  • Ridout v. State
    • United States
    • Supreme Court of Tennessee
    • July 14, 1930
    ...Neil approves and adopts this statement of the rule, laid down by the Supreme Court of Oregon in the leading case of Hamlin v. Kassafer, 15 Or. 456, 15 P. 778, 3 Am. St. Rep. 176, a case of holding over by a judge of an inferior court after expiration of his term: "The color of right which ......
  • City of Terre Haute v. Burns, No. 9279.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 19, 1917
    ...471, 9 Am. Rep. 409; In re Burke, 76 Wis. 357, 45 N. W. 24;McVeany v. Mayor, etc., 80 N. Y. 185-195, 36 Am. Rep. 600;Hamlin v. Kassafer, 15 Or. 456, 15 Pac. 778, 3 Am. St. Rep. 176;Warden v. Bayfield Co., 87 Wis. 181, 58 N. W. 248; Town of Plymouth v. Painter, 17 Conn. 585-589, 44 Am. Dec. ......
  • Waite v. City of Santa Cruz, 12,094.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 29, 1898
    ...of an office performing its duties they have a right to rely upon his acts as done by virtue of his office.' In Hamlin v. Kassafer, 15 Or. 456, 15 P. 778, it was held that a justice of the peace who continued in the discharge of the duties of such office after the expiration of the legal te......
  • Request a trial to view additional results

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