Hildreth's Heirs v. McIntire's Devisee

• Citation: 24 Ky. 206
• Parties: Hildreth's Heirs v. M'Intire's Devisee.
• Decision Date: 15 April 1829
• Court: Court of Appeals of Kentucky

24 Ky. 206

Hildreth's Heirs v. M'Intire's Devisee.

Court of Appeals of Kentucky.

April 15, 1829

De Facto. De Jure. Constitution. Legislature. Appeal. Dismissal. Office. Officer.

APPEAL FROM THE BOURBON CIRCUIT; GEORGE SHANNON, JUDGE.

Hanson for appellants.

Talbot and Shepherd, for the appellee.

OPINION

ROBERTSON JUDGE:

Statement of the facts.

The appellants, having prosecuted an appeal, to the court of appeals, Messrs. Barry, Haggin, Trimble and Davidge dismissed it in 1825, because the record was not filed with F. P. Blair, who was acting as clerk to them. A certificate of the dismission, signed by Blair, as clerk of the court of appeals, was presented to the circuit court of Bourbon, (from which the appeal had been taken), and although objected to by the counsel of the appellants, was received and entered on the record by the court; and thereupon a habere facias, was directed to issue, to carry into effect the original decree, to reverse which, the appeal had been granted.

The only question presented for our decision, is, whether the court erred in obeying the mandate of Messrs. Barry, & c certified by F. P. Blair? And a solution of this question depends on another, viz: whether Barry, & c. were judges of the court of appeals, and Blair its clerk?

Question made and mode of solution.

Although they assumed the functions of judges and clerk, and attempted to act as such, their acts in that character, are totally null and void, unless they had been regularly appointed, under, and according to the constitution. A de facto court of appeals can not exist under a written constitution, which ordains one supreme court, and defines the qualifications and duties of its judges, and prescribes the mode of appointing them.

There can not be more than one court of appeals in Kentucky, as long as the constitution shall exist; and that must necessarily be a court " de jure. " When the government is entirely revolutionized, and all its departments usurped by force, or the voice of a majority, then prudence recommends, and necessarily enforces obedience to the authority of those who may act as the public functionaries; and in such a case, the acts of a de facto executive, a de facto judiciary, and of a de facto legislature, must be recognized as valid. But this is required by political necessity. There is no government in action, excepting the government de facto; because all the attributes of sovereignty, have, by usurpation, been transferred from those who had been legally invested with them, to others, who, sustained by a power above the forms of law, claim to act, and do act in their stead.

There can be but one court of appea??. An office de ??acto can not exist under our constitution. It is a solecism. It only results from necessity, where there is a total subversion of the legal government, and a usurpation of all the p?? ers of sovereignty. While the executive and legislative department remain, there can be no de facto judicial department, or head of that department, unless it also be so de jure.

But when the constitution, or form of government, remains unaltered and supreme, there can be no de facto department, or de facto office. The acts of the incumbents of such department, or office, can not be enforced conformably to the constitution, and can be regarded as valid, only when the government is overturned. When there is a constitutional executive and legislature, there can not be any other than a constitutional judiciary. Without a total revolution, there can be no such political solecism in Kentucky, as a " de facto " court of appeals...