Keeler v. City of Newbern
| Decision Date | 31 January 1868 |
| Citation | 61 N.C. 505 |
| Court | North Carolina Supreme Court |
| Parties | TIMOTHY KEELER v. CITY OF NEWBERN. |
OPINION TEXT STARTS HERE
*1 No evidence is required of facts admitted in a cause.
The charter of a town requiring the officers to be elected, persons cannot claim to be de facto officers of that town who have never been elected, but they are mere usurpers, and the corporation is not liable for contracts made by them in the name of the town.
ASSUMPSIT, tried before Shipp J. at Fall Term 1867 of the Superior Court of CRAVEN.
The plaintiff declared upon a special contract for his wages as a policeman in the city of Newbern for a part of the year 1865, at the rate of $75 per month. The defendant relied upon the plea of general issue. The plaintiff offered proof that certain persons were exercising the functions of Mayor and Councilmen of the city of Newbern in July 1865, and that as such they employed him to serve as a policeman from that time to January 1866. The plaintiff produced no charter or act of incorporation of the city, nor did he produce any evidence of the manner in which the said persons were inducted into office; but it was shown that they took possession of the offices in July 1865 and continued to act as incumbents until March following without interruption, It was proved that they had not been elected, and had never held office in any previous year; and it was admitted that the charter and the laws by which the city was governed required an election of the Mayor and Councilmen.
The defendant contended: 1st. That the plaintiff was bound to show that there was such a corporation as the city of Newbern and that this could be done only by producing the act of incorporation; 2d. That the persons acting as Mayor and Councilmen at the time of the contract with the plaintiff were mere intruders or usurpers, and had no authority to contract debts binding upon the city.
By agreement these questions were reserved, and a verdict was entered for the plaintiff, subject to the opinion of his Honor. The court being of opinion with the defendant set the verdict aside and ordered a nonsuit. The plaintiff appealed.
No counsel for the appellant.Manly and Haughton, contra .
*2 Corporate capacity must be expressly shown. 1 John. Dig. 416, s. 1; 3 Hawks 520.
The acts of persons who usurp office are void. Ang. & Am. Cor. 159. As to officers de facto, see Ibid., p. 140-4, 361.
READE J.
There seems to be no force in the defendant's first exception: that the existence of...
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N.C. State Conference of The Nat'l Ass'n v. Moore
...463 (1968); Smith v. Town of Carolina Beach, 206 N.C. 834 (1934); People ex rel. Norfleet v. Staton, 73 N.C. 546 (1875); Keeler v. City of Newbern, 61 N.C. 505 (1868). these types of cases, the question is whether the individual claiming the powers of an office assumed that office in a mann......
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Wingler, In re
...impeached at any time in any proceeding. State v. Shuford, supra; Van Amringe v. Taylor, supra; Norfleet v. Staton, supra; Keeler v. City of New Bern, 61 N.C. 505. Practical procedural rules have been devised to enforce these principles in actual litigation. Where the validity of an act of ......
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People ex rel. Duncan v. Beach
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