McCraw v. Williams

• Citation: 74 Va. 510
• Parties: MCCRAW v. WILLIAMS, Supt. Penitentiary. ESTES v. EDMONDSON, sheriff.
• Decision Date: 24 September 1880
• Court: Virginia Supreme Court

74 Va. 510

MCCRAW v. WILLIAMS, Supt. Penitentiary.

ESTES v. EDMONDSON, sheriff.

Supreme Court of Appeals of Virginia.

September 24, 1880

1. B was elected in January, 1874, judge of the county court of Halifax and commissioned by the governor, and proceeded to act as such. HELD: His term of six years did not commence until the 1st of January, 1875, and continued until the 31st of December, 1880.

2. A was elected in January, 1880, judge of the county court of Halifax, and commissioned by the governor; and believing that his term commenced immediately he proceeded to hold the court and transact business. HELD: He was a judge de facto; and his judgments are valid and binding, as if he had been a judge de jure.

3. B is entitled to the office until the end of his term, and the fact that he did not immediately proceed to oust A, but practiced as an attorney in his court, did not operate either as a surrender or forfeiture of his office.

These cases were heard together at Wytheville, but decided at Staunton. They are writs of habeas corpus; and the facts are stated in the opinion of Judge Christian.

E Barksdale, Jr., and John Lyon, for the petitioners.

Henry Edmunds, for the officers.

CHRISTIAN J.

These two cases were heard together at the late session of this court at Wytheville. They were proceedings instituted for the purpose of testing the question before this court, as to who is now and at the time the said proceedings were instituted the lawfully qualified judge of the county court of Halifax county.

The first-named case (McCraw v. Sup. of Penitentiary ) will be first disposed of.

The record in this case discloses the following state of facts. Celia McCraw was indicted by a grand jury in the county court of Halifax, for the murder of her infant child recently born. On the 27th April, 1880, she was tried in said court, found guilty of manslaughter, and the term of her imprisonment ascertained by the jury to be one year in the penitentiary. She was accordingly sentenced by the county judge, and sent to the penitentiary to serve out the term of her imprisonment. While confined in the penitentiary she applied to the Hon. Beverley R. Wellford, for a writ of habeas corpus which was awarded. Upon the hearing of her case she was remanded to the custody of the superintendent of the penitentiary to serve out the term for which she was sentenced.

To this judgment a writ of error was awarded by one of the judges of this court.

I am of opinion that there is no error in this judgment.

The sole ground urged for the discharge of the prisoner in her petition for a writ of habeas corpus, and in argument here, is that she was convicted in a county court held by E. W. Armistead, " who did unlawfully intrude himself into and usurp the office of county judge of Halifax county; and did unlawfully assume upon himself and undertake to hold a term of the county court of Halifax county:" at which term the prisoner was indicted, tried and convicted and the petitioner insisted that her conviction and sentence to the penitentiary was void, having been obtained before and pronounced by a judge having no authority to hold said court.

The circuit court of Richmond was clearly right in dismissing the petition and remanding the prisoner to custody.

At the time of indictment, trial, and conviction of the prisoner, Judge Armistead was certainly a judge de facto, holding his office under color of title. He was then in office by virtue of his election by the legislature and his commission by the governor. At that time there was no question as to his authority to hold the court, nor was there any person claiming and asserting title to the office into which he had been duly installed.

The record shows that on the 27th January, 1880, E. W. Armistead was elected by a joint vote of the two houses of the general assembly judge of the county court of the county of Halifax. That on the 9th day of February, 1880, he was commissioned by the governor " for the term of office prescribed by law" ; that on the 20th day of February he qualified under this commission by taking the oaths prescribed by law, and on the 23d February had his commission and certificate of qualification recorded on the order book of Halifax county court; and on that day took his seat on the bench.

Under this state of facts it is plain that Judge Armstead was certainly exercising the duties of his office under color of the highest legislative and executive authority, and that all his acts, judgments, decrees, and orders, while so acting, were valid and binding, and cannot be enquired into; but must be recognized in all cases where the county court of Halifax has jurisdiction as a final determination of such cases, except when reversed on appeal or writ of error.

This doctrine is well settled by the decisions of this court, as well as those of numerous cases, English and American, and approved by all text writers of acknowledged authority. See Griffin's ex'or v. Cunningham, 20 Gratt. 31, 43; Quinn v. Commonwealth, 20 Gratt. 138, 141; Bolling v. Lersner, 26 Gratt. 36; Blackwell Tax Titles 92.

The distinction between an officer de jure, one who is de facto, and a mere usurper, is well known and clearly defined. An officer de jure has the legal title to, and is clothed with, all the power and authority of the office. He has a title against the world to exercise the functions of the office and receive the fees and emoluments appertaining to it. He is responsible to the government and injured parties when he abuses his trust or transcends his authority. But his acts within the scope of that authority cannot be questioned by the citizen or any department of the government.

An officer de facto is one who comes in by the power of an election or appointment, but in consequence of some informality, or want of qualification, or by reason of the expiration of his term of service (or it may be said also by entering upon the duties of his office before his term of service fixed by law begins ), cannot maintain his position when called upon by the government to show by what title he holds his office. He is one who exercises the duties of an office under claim and color of title, being distinguished on the one hand from a mere usurper, and on the other from an officer de jure. A mere usurper is one who intrudes himself into an office which is vacant, and ousts the incumbent without any color of title whatever; and his acts are void in every respect.

The following definition of Lord Ellenborough has been adopted by text writers, as more accurate and expressive than any other, is as follows: " An officer de facto is one who has the reputation of being the officer he assumes to be, and is yet not a good officer in point of law."

The rule which declares that the acts of an officer de facto are as valid and binding as if he were an officer de jure, is founded on the soundest principles of public policy, and is absolutely essential to the protection of the best interests of society. Indeed the affairs of society could not be conducted on any other principle. To deny validity to the acts of such officers, would lead to confusion and insecurity, in public as well as private affairs, and thus oppose the true policy of every well regulated State.

In the case before us Celia McCraw, the petitioner, held in custody of the Superintendent of the Penitentiary, was tried and convicted in a court of competent jurisdiction presided over by a judge who held his office under color of authority of his appointment by the legislature and commission of the governor. If he was not judge de jure at the time of the trial and conviction, he was certainly a judge de facto, and his judgment is as valid and binding as if he was judge de jure.

The case of Quinn v. The Commonwealth, 20 Gratt. ( supra ), is a case exactly in point. That case came before this court upon a petition for a writ of habeas corpus presented by the prisoner convicted of a felony and sentenced to three years in the penitentiary by the hustings court of the city of Richmond presided over by Charles H. Bramhall. The prisoner based his application for a discharge upon the ground, that the said Bramhall, who presided at the term of the said court at which prisoner was convicted and sentenced, being a military appointee of the Federal government was not authorized to exercise the functions of a judge after the restoration of civil government in Virginia.

It was held that Judge Bramhall was a judge de facto, and his judgment valid and binding, and the prisoner was remanded to custody. Judge Staples in delivering the opinion of the court in that case, refers to two cases so apposite to this that I refer to them here, as being recognized as authority by this court. The one is State v. Bloom, 17 Wisc. R. 521, and the other People v. White, 24 Wend. R. 520.

In the first named case it was held that where a party was indicted convicted and sentenced at a term of a circuit court held by a person who exercised the office of judge of said court under an appointment by the governor, without authority of law, there being no other person entitled to said office, the sentence was nevertheless valid and binding. It was so decided upon application for a writ of habeas corpus after a judgment of ouster had been pronounced against the judge, upon the ground that he had been so illegally appointed. In the other case (24 Wend. 520) it was said " that where an officer having an apparent authority to do the act, had rendered judgment between the people and the prisoner, neither party can in a collateral way call in question the title of the judge. The government may try the title by quo warranto, but until that is done his acts are valid and effectual so...