Harbaugh v. Winsor

Citation38 Mo. 327
PartiesHOWARD HARBAUGH, Plaintiff in Error, v. EDWARD WINSOR AND MARQUIS W. WITHERS, Defendants in Error.
Decision Date31 July 1866
CourtUnited States State Supreme Court of Missouri

Error to Lafayette Circuit Court.

Ryland & Son, for plaintiff in error.

I. The question before the Circuit Court involved the simple fact, whether R. C. Vaughan, on the 3d of July, 1865, was acting and discharging the duties of the office of clerk of the Circuit Court of Lafayette county; whether he was clerk de facto of said court.

II. The acts of officers de facto are as valid, so far as the public is concerned, as though they were officers de jure; so are they with third persons.

“An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.”--Ld. Ellenborough, in the King v. Corporation of Bedford, 6 East. 369. R. C. Vaughan was and had been the acting and legal clerk of one Circuit Court from May, 1862, up to May, 1865. He was appointed clerk pro tempore on the 22d of May, 1865. He was in the office, and doing the work and performing the duties of clerk of the court up to the 10th of July, 1865. On July 3, 1865, he, as clerk, issued the writ in this case. Can there be a doubt of the legality of this act of Vaughan? No principle is better settled than that the acts of an officer de facto are valid when they concern the public or third persons, when they have an interest in the thing done--Knight v. Corporation of Wells, Lutw. 508-19; People v. Collins, 7 JOhns. 549; McKinstry v. Tanner, 9 Johns. 135; Wilcox v. Smith, 5 Wend. 231; People v. Bartlet, 6 Id. 422; People v. White, 24 Id. 539, 540. An officer de facto is one who comes into a legal and constitutional office by color of legal appointment or election to that office; and as the duties of the office must be discharged by some one, for the benefit of the public, the law does not require third persons, at their peril, to ascertain whether such officer has been properly elected or appointed, before they submit themselves to his authority, or call upon him to perform official acts which it is necessary should be performed--People v. Covert, 1 Hill, 674; Buckman v. Ruggles, 15 Mass. 180; Bond v. Bk. of Washington, 11 Serg. & Rawl. 411; Cocke v. Halsey, 16 Pet. 85; 14 Curt. Cond. R. 189; People v. Hopson, 1 Denio, 579; People v. Stephens, 5 Hill, 630; Green v. Burke, 23 Wend. 490; Taylor v. Skrine, 2 Const. R. (S. C.) 606. These cases show that the doctrine is well settled, that the acts of an officer de facto, though his title may be bad, are valid, so far as they concern the public, or the rights of third persons who have an interest in the things done. A person, by color of election, may be an officer de facto, though indisputably ineligible, or though the office was not vacant, but there was an existing office de jure at the time--Angell & Ames on Corp. §§ 286, 287; O'Brian v. Kirwan, Cro. Jac. 552; Harris v. Jays, Cro. E. 699; 4 Gill. (Md.) 437; Smith v. Erb, 2 Cush. (Miss.) 39; 21 Penn. 141; 36 Me. 78; 37 Me. 587; 8 Dana, 115; 25 Ala. 566; 6 Conn. 428; 6 East, 368-9.

The case of Cocke v. Halsey, 16 Pet. 85, is directly in point; and the doctrine there laid down by the Supreme court of the United States clearly shows that the court below erred in quashing the writ in this suit.

W. Adams, for defendants in error.

After the ousting ordinance took effect, and after the appointment of Currie and his acceptance of the office of clerk, Vaughan was not a de facto officer but was a mere intruder, without any color of right, and his acts were utterly void. At the time the supposed writ was issued, Currie was the clerk de facto as well as de jure, and Vaughan was a stranger--a mere trespasser, and might have been thrown out by Currie by force of arms.WAGNER, Judge, delivered the opinion of the court.

The plaintiff in error brought his action in the Circuit Court of Lafayette county, against the defendants. The petition contained two counts. The first count charged that the defendants, on the 5th day of July, 1860, did, with great force and violence, enter into the printing office of plaintiff, in the county of Lafayette, which printing office was then and there in the lawful and peaceable possession of the plaintiff; and said defendants then and there violently, tumultuously, and with great force and violence, seized, took and carried off and destroyed the newspaper called the Citizens' Public Advertiser, the property of the plaintiff; and ordered, and forced, and compelled the plaintiff to leave and abandon his said printing office, and to seek safety for his life by flight; by which he was greatly injured by the acts of the defendants, and sustained damages in the sum of two thousand dollars, for which he asked judgment.

The second count in the petition alleged that defendants did, with force and arms, enter into the printing office of the plaintiff, in possession at the time of the plaintiff, and did violently, unlawfully, tumultuously, and against the peace of the State, seize, take, destroy and tear to pieces the last impression of said newspaper, just then printed and ready for delivery; and then and there forced, ordered and compelled the plaintiff to save himself by flight; to his damage in the sum of two thousand dollars, for which he asked judgment.

The petition was filed in the office of the circuit clerk of Lafayette county, on the 3d day of July, 1865, and summons was duly issued and served on the defendants the same day. At the term of the Circuit Court to which the writ was made returnable, the defendants appeared by their attorney, and moved the court to quash the writ and strike the petition from the files of the court, because the said writ was not issued by an officer or any one having authority to issue the same, and the petition was not filed with any officer having authority to file the same, or to issue a writ thereon. This motion was sustained by the court, and the plaintiff excepted and sued out his writ of error.

The record shows that when the petition was filed, the clerk's office was in possession of Richard C. Vaughan,...

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    • July 6, 1943
    ...to this action, the public generally, and third parties, and are not subject to collateral attack. State v. Rich, 20 Mo. 393; Harbaugh v. Winsor, 38 Mo. 327; State v. Douglass, 50 Mo. 593; Franklin Avenue German Savs. Institute v. Board of Education, 75 Mo. 408; Wilson v. Kimmel, 109 Mo. 26......
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