Keyser v. McKissan

• Decision Date: 20 October 1828
• Citation: 2 Rawle 139
• Parties: BENJAMIN KEYSER and others, Commissioners of the County of Franklin, v. WILLIAM M'KISSAN. BENJAMIN KEYSER and others, Commissioners of the County of Franklin, v. JOHN BROTHERTON. BENJAMIN KEYSER and others, Commissioners of the County of Franklin, v. ROBERT BRATTON. BENJAMIN KEYSER and others, Commissioners of the County of Franklin, v. JOHN SNYDER.
• Court: Pennsylvania Supreme Court

2 Rawle 139

BENJAMIN KEYSER and others, Commissioners of the County of Franklin, v. WILLIAM M'KISSAN.

BENJAMIN KEYSER and others, Commissioners of the County of Franklin, v. JOHN BROTHERTON.

BENJAMIN KEYSER and others, Commissioners of the County of Franklin, v. ROBERT BRATTON.

BENJAMIN KEYSER and others, Commissioners of the County of Franklin, v. JOHN SNYDER.

Supreme Court of Pennsylvania.

October 20, 1828

APPEAL.

The Commissioners of a county, as well as the treasurer, are bound to take an oath of office.

It is no defence for a treasurer, in a suit by the commissioners on his official bond, that the commissioner have not taken an oath of office.

The acts of public officers de facto, coming in by colour of title, are good so far as respects the public, but void when for their own benefit.

A payment to a county treasurer, who has not taken the oath of office, by his predecessor, is a legal payment.

Dunlop and M'Cullough, for the defendants.

Crawford and Chambers, contra.

OPINION

ROGERS J.

This is an appeal from the decision of Justice HUSTON, at a Circuit Court held for the county of Franklin. The defendants move the court for a new trial, on the ground of a misdirection: 1. In instructing the jury, that the issue whether Benjamin Keyser and Jacob Wonderlich, had taken the oath of office, was an immaterial issue. 2. That the verdict was against law and evidence; and, 3. Because the court instructed the jury, that the plaintiffs, as commissioners, could maintain this action without having taken the oath of office, required by the constitution of Pennsylvania. It is unnecessary to consider the first reason assigned; as, if the defendants fail in their second and third, it will be conclusive against the application.

These were suits brought by Benjamin Keyser and others commissioners of the county of Franklin, against the treasurer of the county and his sureties, on the official bond, taken in pursuance of the directions of the thirteenth section of the act of assembly of the 11th of April, 1799. It is objected, that the plaintiffs, who are the commissioners, and from whom the treasurer received his appointment, had not taken the oath to support the constitution; and it is strenuously contended, that this omission renders the bond void. After the decision of the court in Riddle v. The County of Bedford, we consider the oath necessary, as well in the case of the commissioners, as the treasurer. The cases are not distinguishable in principle. It must also be conceded, as the matter now stands, that the oaths were not, in fact taken by the commissioners. The rule which governs the case is, that the commissioners, who appointed the treasurer, were officers de facto, since they came into their office, by colour of title. It is a well settled principle of law, that the acts of such persons are valid when they concern the public, or the rights of third persons, who have an interest in the act done. 7 Johns. Rep. 554. The People v. Collins, Andrew's Rep. 263. King v. Lysle. And this rule has been adopted to prevent a failure of justice. And the distinction between the public, strangers, and the officer himself, is recognised in Riddle v. The County of Bedford, 7 Serg. & Rawle, 386. " A county treasurer," says the court, " is an officer within the eighth article of the constitution, and must take an oath of office, and he cannot sustain a suit to recover his fees as such officer, when he has not taken the oath, and there is no acquiescence in the defendant." In Riddle v. The County of Bedford, the plaintiff, who was the treasurer, was defeated, on the ground that the suit was brought for the benefit of the officer,...