Hinton v. Tlindsay
| Decision Date | 30 November 1856 |
| Docket Number | No. 144.,144. |
| Citation | 20 Ga. 746 |
| Parties | Jesse H. Hinton, plaintiff in error. vs. John T.Lindsay, defendant in error. |
| Court | Georgia Supreme Court |
Motion, in Wilkes Superior Court. Decision by Judge James Thomas, September Term, 1856.
This was a controversy between judgments on a money rule. The fi. fas. in favor of Hinton were upon judgments rendered by one Bradford, as a J. P. at a time when he was engaged in teaching school in a district adjoining that-in which he claimed to be Justice. Four nights of each week were spent in the district where he taught school, and two at his father's house, in the other district, where he had previously resided; and the seventh nights, sometimes at one place and sometimes the other; he was a single man, and his intention was, when he took the school, to return to his father's at the expiration of six months.
The Court below held the judgments void, and that they might be attacked on this rule. This decision is assigned as error.
Barnett, for plaintiff.
Reese, for defendant.
By the Court.— Lumpkin, J., delivering the opinion.
Did the Justice, Bradford, reside out of the district at the time he rendered the judgment in favor of Jesse H. Hinton?
That Statute was passed for the express purpose of "fully" defining what should constitute the legal residence of citizens and inhabitants of this State. The preamble recites, that "whereas, no small degree of embarrassment has arisen and is likely to arise from the indefinite manner in which the place of residence of citizens and inhabitants of this State is defined by law; for remedy whereof, it was enacted, "That from and after the passage of said Act, the place where the family of any person shall permanently reside in this State, and the place where any person having no family shall generally lodge, shall be held and considered as the most notorious place of abode of such person or persons respectively." (Cobb, 530.)
What is the proof upon this point? Mr. Justice Bradford was a single man. Up to the time of his election, he had always lived with his father. Subsequently, he took a school in the adjoining district and slept four nights out of seven at the house where he boarded and taught; two he spent at his father's, and the other he divided between the two places. Under the Statute, it can not be denied, that he "generally lodged" out of the district for which he was elected.
Did he thereby vacate his office? After carefully collating all of the Acts upon this subject, we agree with the presiding Judge that he did.
Justices of the Peace are to be elected by the voters of thedistrict in which he resides; and when a vacancy shall happen by death, resignation or otherwise, (removal for instance,) provision is made for choosing a successor. (Cobb, 207.) And by the Act of 1809 (Cobb, 638) it is provided, that "in all cases where any Justice of the Peace shall resign or remove out of the limits of the district for which he shall have been appointed, it shall be the duty of such Justice to deliver his docket or book of entries, or a fair copy thereof, to his successor in office within sixty days after he may be commissioned, or deposit the same with the Clerk of the Inferior Court."
The implication is irresistible, that removal from the district works a forfeiture of the office.
The last, and by far the most troublesome point is, were the judicial acts done by this Magistrate during the five months that he generally lodged out of the district in which he presided, void? And can they be collaterally impeached and set aside, in a proceeding to which he is no party?
We consider the doctrine well settled, upon great principles of public policy, that the acts of an officer de facto, whether judicial or ministerial, are valid, so far as the rights of the public or third persons having an interest in such acts are concerned; and that neither the title of such an officer nor the validity of his acts, as such, can be indirectly called in question in a proceeding to which he is not a party. This doctrine has been established from the earliest period, and repeatedly confirmed by an unbroken current of decisions, both in England and in this country. .)
Indeed, the doctrine in these cases is universally applied in England to officers de facto, from the lowest officer up tothe King,
The same doctrine has been repeatedly recognized and affirmed by the Courts of the Union. .)
But conceding the foregoing rule to be well established, it is not always easy to determine what ought to be considered as constituting a colorable right to an office, so as to determine whether one is a mere usurper. An officer de facto is said to be one who exercises the duties of an office under color of an appointment or election to that office. An officer de jure is one who, in all respects, is legally appointed and qualified to exercise the office. A mere usurper is one who undertakes to act as an officer without any color of right.
Lord Ellenborough, in the leading case of The King vs. The Corporation of Bedford Level, defines an officer de facto to be one "who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law." (Citing 1 Ld. Ray. 660.)
Now the only point which presses at all upon our minds is. assuming that the office was vacated by the removal of the Justice, is he to be considered as a Justice de facto, or a usurper merely? That he still had the reputation of being the officer he assumed to be, in the language of Lord Ellenborough, there can be no doubt. His judgments and official acts were submitted to by the defendant in execution and others, with-out objection or contestation. It is evident, that neither the Magistrate himself nor others believed his commission was forfeited by his removal, under the circumstances. The question has been considered so doubtful as to require the final adjudication of this Court.
In view of all the facts of this case, the necessity of protecting the rights of individuals and the security of public peace, maintaining the supremacy of the law and enforcing its due execution, we feel constrained to uphold the judgments of this officer. It is not pretended that there is any flaw or defect in his appointment; that he was not duly elected and qualified. There has been no chasm or hiatus in the regular discharge of his public duties under his commission. No attempt has been made to oust him on a quo warranto. His title to the office has never been directly drawn in question in a proceeding to which he was a party, and in which the evidence might be very different. The act done is one which he might perform as an officer de facto.
Abbott, C. J., in Margate Pier Co. vs. Hannam, says,
And in view of these consequences, the Court there held that the acts of a Justice of the Peace were not void, although he had not taken the oaths nor delivered in the certificates required by law. By an Act of 51st of George IV. c. 36, it was provided, that no person should act as a Justice of the Peace, unless he shall have taken and subscribed the oaths, and delivered in, at some general sessions to be holden in some of the cinque ports, the certificate respectively required to be taken and subscribed and delivered in by the Magistrate.
And by an older Statute, (18 Geo. 2 c. 20,) it is declared, that any person who shall act as a Justice without being qualified as required by law, shall forfeit £ 100.
In the case before us, we are called on, not only to invalidate the title of the officer, but to decide, that he acted as a mere usurper, and that his acts are wholly void, both as to individuals and the public.
In Knowles vs. Luce, (Moore, 112,) a distinction was taken by the Court between copyholds granted by a steward of a manor who had color, but no right to hold a Court, and those granted by one who had neither color nor right, and who was, therefore, a mere usurper. The former were deemed valid—the latter, void. And the reason given for the distinction is, that in the former case, "those for whom such acts are done, know not the extent of...
To continue reading
Request your trial
-
Smith v. Maginnis
...continues to act as such officer, is an officer de facto. 49 Ark. 439; 5 Am. & Eng. Enc. Law, 105; 71 Me. 207; 109 Mo. 260; 23 Cal. 315; 20 Ga. 746; 42 N.H. 56; 87 Va. 484; 17 Oh. 143; 38 562; 25 Ark. 337; Throop, Pub. Off. § 631; 19 Am. & Eng. Enc. Law, 562; 25 Ill. 325; 43 Md. 572; 30 La.......
-
Sutton v. Adams
... ... wholly devoid of equity. Under the allegations made, the ... plaintiff was at least a de facto officer. Hinton v ... Lindsay, 20 Ga. 746 (4); Gunn v. Tackett, 67 ... Ga. 725, 727. We refrain from any statement as to whether the ... plaintiff was a de ... ...
-
Bedingfield v. First Nat. Bank
... ... officer assumes to discharge. Our Supreme Court has approved ... Lord Ellenborough's definition in Hinton v ... Lindsay, 20 Ga. 746 ... But it ... does not follow from this that there can be a de facto judge ... pro hac vice ... ...
-
Beck v. State
...that Douglas was a de facto magistrate, the superior court applied a long line of authority reaching back at least to Hinton v. Lindsay, 20 Ga. 746 (1856) (actions of justice of peace were not void although his residence in another district technically vacated his office). In Hinton, the co......
-
"garbage In, Garbage Out": the Litigation Implosion Over the Unconstitutional Organization and Jurisdiction of the City Court of Atlanta - Edward C. Brewer Iii
...authority as "special deputy sheriff'). 97. 4 Ga. App. at 209, 61 S.E. at 34. 98. Id. at 201, 61 S.E. at 31. 99. Id., 61 S.E. at 32. 100. 20 Ga. 746 (1856). 101. 4 Ga. App. at 201, 61 S.E. at 32. 102. Id. at 202, 61 S.E. at 32. 103. 8 Ga. 143 (1850). 104. 4 Ga. App. at 206, 61 S.E. at 34. 1......