People v. Payment

• Decision Date: 02 June 1896
• Citation: 67 N.W. 689,109 Mich. 553
• Court: Michigan Supreme Court
• Parties: PEOPLE v. PAYMENT ET AL.

67 N.W. 689

109 Mich. 553

PEOPLE v. PAYMENT ET AL.

Supreme Court of Michigan

June 2, 1896

Exceptions from circuit court, Chippewa county; Joseph H. Steeve, Judge.

Minnie Payment and John E. McDonald were convicted of adultery, and the former excepts. Affirmed.

McDonald & Chapman and Holden & Steinlein, for appellants.

Fred. A. Maynard, Atty.

Gen and Frank R. Warner, Acting Pros. Atty., for the People.

HOOKER, J.

The defendant, Minnie Payment, was convicted of adultery upon a plea of not guilty, entered by direction of the court by reason of her refusal to plead to the information. Her counsel claim that the conviction is void because of a want of jurisdiction in the examining magistrate (1) because he was not a lawful officer; (2) because the arrest, complaint and warrant were unlawful and void. The magistrate was elected to the office of justice of the peace at the regular spring election of 1894. On the 4th of July following he received the docket and papers from his predecessor, and entered upon the duties of the office, but neglected to file his oath of office and bond until July 9th. It is contended that this created a vacancy in his office, under How. Ann St. � 649, which provides that "every office shall become vacant, on the happening of either of the following events, before the expiration of the term of such office: His refusal or neglect to take his oath of office, or to give or renew any official bond, or to deposit such oath or bond in the manner and within the time prescribed by law." Sections 767-769 require the justice elect to take subscribe, and file his oath of office and execute and file his bond on or before the 4th day of July. By these sections the justice has the whole of the 4th of July to file these papers. There is nothing to indicate that he is not a lawful officer until this is done. On the contrary, the case is parallel to that of a sheriff who is required to file bonds at stated times. See Dunphy v. Whipple, 25 Mich. 10. In that case this court held that such sheriff was an officer de facto; that his election justified his treatment as an officer, and not a usurper, and that, together with his acting under it, constituted protection to those interested in his official acts. The election and the exercise of the office within the lawful term of the office constituted color, and his title could not be attacked in any other way than a direct proceeding for that purpose. The case of Carleton v. People, 10 Mich. 250, lays down the same doctrine, which appears to have been approved by the dissenting judges, who base their dissent upon the fact that the law had not provided for any other officer de jure. Mr. Justice Campbell said: "There could not be an officer de facto where no officer de jure was provided for. Where the law has provided that an office may legally be filled, then the acts of an incumbent may be valid, although not lawfully appointed, because the public, being...