Ridout v. State
| Decision Date | 14 July 1930 |
| Citation | 30 S.W.2d 255 |
| Parties | RIDOUT v. STATE. |
| Court | Tennessee Supreme Court |
Bates, Shea & Frazer, of Memphis, for plaintiff in error.
The Attorney General, for the State.
Appealing from a conviction for voluntary manslaughter, plaintiff in error challenges the validity of the indictment on the ground that the trial judge was not qualified to act on the day when he organized the grand jury. Certain other errors assigned have been considered, but found without merit, and this opinion is confined to the single question above stated.
The terms of the Shelby county criminal court, three a year, open on the third Mondays of January, May, and September. Unless earlier adjourned, each term runs until the opening of the succeeding term.
It appears that the regular judge was "absent on account of illness" on the 12th day of December, 1928, and on that day an election by the members of the local bar in attendance was duly held, and the Honorable Phil Wallace was regularly elected, pursuant to section 5730 of Shannon's Code (Acts of 1870, c. 78), to preside during the absence on account of illness of the regular judge.
On the 16th day of the following month, January, Judge Wallace, continuing to preside during the absence of the regular judge, opened the January term of the court without objection, and impaneled and instructed the grand jury, which was duly sworn and later returned the indictment in this case. At a later day, in March following, the trial was had by a jury regularly impaneled and sworn and before a judge whose right to preside at that time is in no way questioned. The validity of the indictment only is attacked, and this attack is directed and confined to the insistence that the authority of Judge Wallace to sit and act instead of the regular judge expired with the closing of the September term during which he had been elected, and that indictments returned by the grand jury thus unlawfully impaneled and instructed are void.
The pertinent parts of section 5730 of Shannon's Code read as follows:
It will be seen that the special judge so elected is "to hold the court for the occasion," and that "the person elected shall, during the period that he acts, have all the powers, and be liable to all the responsibilities, of a regular judge." The "occasion," or contingency, which arose in the instant case, justifying an election under the statute, was the absence on account of illness of the regular judge. "Occasion" is defined as "a condition of affairs"; or as "a juncture entailing need"; an "exigency," or "a juncture affording ground or reason for something."
The constitutionality of the statute above quoted was passed upon and approved in the early cases of Ligan v. State, 3 Heisk. 159; Hundhausen v. Insurance Co., 5 Heisk. 702, and Halliburton v. Brooks, 7 Baxt. 318. It was recognized in those cases that the intention of the Legislature was to make provision for filling a vacancy in an office during the temporary absence or disqualification of the regular judge only, it being contemplated that the authority of the special judge thus elected would expire with the expiration of the occasion or exigency calling for his election. And, in this connection, in the Ligan Case, Judge Freeman remarked: And in the Hundhausen Case he said: "We can see no better mode of meeting the exigency than the one provided by the statute." And so Judge Deaderick, in the Halliburton Case, commented to the same effect.
In Harris v. State, 100 Tenn. page 287, 45 S. W. 438, it was held that a special judge selected under this statute to preside in the absence of the regular judge may try and dispose of criminal, including capital, cases, as well as civil cases.
This court in Low v. State, 111 Tenn. 81, 78 S. W. 110, 111, held that the authority of a special judge chosen under this statute expires with the particular term of court during which he is elected. It is insisted that the language of that opinion in giving construction to the word "occasion" comprehends every case of election under this statute, and that upon that authority the power of Special Judge Wallace to act ceased with the September term, and that his action in organizing the grand jury on the opening day of the following term was void.
Just here, as emphasizing the vital importance of the issue presented, it is significant that the grand jury organized under the direction of this presiding judge returned not only the indictment in the case at bar, but a great number of others, and that this same judge presided at the trial of numerous cases, resulting in convictions on the one hand and acquittals on the other, his authority being recognized without question or objection by the bar, the litigants, court officials, including the regular judge, and the public.
Now, conceding that the election of this special judge was for the September term only, and that when, on the opening day of the succeeding term, he organized the grand jury, his term of office had expired, was he not, while thus holding over, in good faith believing himself to have continuing authority, and acting with general acquiescence and with all the indicia of reputation, a judge de facto, and his acts therefore beyond collateral attack by those third parties affected?
The general definition of an officer de facto, as expressed by Lord Ellenborough in Rex v. Bedford Level, 6 East, 356, is: "An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law." This definition has been generally approved in this country and in England. 1 Bouv. Law Dict. 761 defines de facto: "In fact; actually; indeed." Another brief definition given by the Supreme Court of Wisconsin is: "A de facto officer is one who is in possession of an office, and discharging its duties, under color of authority." State v. Oates, 86 Wis. 634, 57 N. W. 296, 297, 39 Am. St. Rep. 912. And that court adds: "By color of authority is meant authority derived from an election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer."
In Wright v. Mattison, 18 How. 50, 56, 15 L. Ed. 280, color of title is defined to be that which "in appearance is title, but which in reality is no title." The difference between the basis of the authority of a de jure officer and that of a de facto officer is that one rests on right, the other on reputation. It may be likened to the difference between character and reputation. One is the truth of a man, the other is what is thought of him. Mr. Justice Marshall, in his learned opinion in Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, 612, 46 L. R. A. (N. S.) 796, declares the American view to be that it is color of authority, not color of title, which distinguishes an officer de facto from a usurper, citing cases, and Throop, Pub. Off. § 623 and Mechem, Pub. Off., § 317. And the modern rule treats "color" as the equivalent of appearance only, without reference to source.
In Heard v. Elliott, 116 Tenn. at page 157, 92 S. W. 764, 766, Mr. Justice Neil approves and adopts this statement of the rule, laid down by the Supreme Court of Oregon in the leading case of Hamlin v. Kassafer, 15 Or. 456, 15 P. 778, 3 Am. St. Rep. 176, a case of holding over by a judge of an inferior court after expiration of his term: "The color of right which constitutes one an officer de facto may consist in an election or appointment, or in the holding over after the expiration of one's term, or acquiescence by the public in the acts of such officer for such length of time as to raise the presumption of colorable right by election or appointment." We have italicized the alternative most directly applicable to the instant case.
In 22 R. C. L. 598, the rule is thus laid down:
"Where an officer under color of right continues in the exercise of the duties of the office after his term of office has expired, or after his authority to act has ceased, he is an officer de facto, although he has no right to hold the office as against the one rightfully chosen his successor."
To the same effect is 23 Cyc. pp. 619, 620.
In 8 Am. & Eng. Ency. of Law, page 796, treating of de facto public officers, under the subhead "Holding Over," the rule is thus stated: "As a general rule, one who comes into office legally, and continues to hold possession of the office and exercise the functions and duties thereof after the term for which he was elected or appointed has expired, is an officer de facto." Supporting authorities...
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