Smith & Bondurant v. Meador

• Decision Date: 02 April 1885
• Citation: 74 Ga. 416
• Parties: SMITH & BONDURANT v. MEADOR.
• Court: Georgia Supreme Court

74 Ga. 416

SMITH & BONDURANT v. MEADOR.

Supreme Court of Georgia.

April 2, 1885

February Term, 1885.

1. Commercial notaries public are public officers, whose duties oaths and powers are prescribed bye law. They are appointed for four years, but upon the expiration of that time, a commercial notary and his office do not cease, but he continues to hold his position until a successor is appointed, or he is removed.

2. If after the expiration of the term for which a commercial notary was appointed, and before that fact was discovered, he attested an affidavit, both parties acting in good faith, if not an officer de jure, he would, in such transaction, be an officer de facto, and his attestation would not be void.

( a. ) The doctrine of the recognition of the acts of de facto officers is founded on considerations of public policy.

HALL J., concurred.

BLANDFORD J., dissented.

Officers. Notaries Public. Assignments. Before Judge HAMMOND. Fulton Superior Court. September Term, 1884.

Smith & Bondurant sued Rushing, Keller & Company and garnished Meador. The latter answered that he had received certain effects under a deed of assignment from defendants; that the official attestation of this deed and of the affidavit attached thereto, as required by the statute, was by one Woodson, who had for years been a commercial notary public at a bank in Atlanta; that he is informed, and believes, that defendants and Woodson both believed that he was still a notary when he signed as such, but subsequently it was discovered that the term of four years for which he had been appointed had expired, and he renewed his commission. On this answer, plaintiffs moved for judgment, insisting that the assignment was void for want of proper attestation by an authorized officer. The court refused the motion, and plaintiffs excepted.

C. H. & R. B. BARNES, for plaintiffs in error.

HOKE SMITH; B. F. ABBOTT, for defendant.

JACKSON Chief Justice.

The legal question which this record makes is, whether a deed of assignment is void because the affidavit thereto was made before a commercial notary public a few days after the expiration of his term of office, and before the renewal of his appointment; and that question turns on this, was he then a de facto officer, and if not, then, under our statute, is he de jure an officer? And that turns upon this, is the commercial notary a public officer?

1. Public officers hold over until successors are appointed. Code, §132. Notaries public for commercial purposes are public officers. They are appointed by the judges of the superior court. Code, §1497. They take an oath before the clerk of the court. §1498. They hold their offices for four years. §1499. They are sworn, like all public officers, that they are not holders of public money belonging to the state. §1498; also §129, sub-section 2. Removal from the county vacates the office. §1501. " They may administer oaths in all matters incident to them as commercial officers, and all other oaths which are not by law required to be administered by a particular officer." §1502, sub-section 4. Each notary must have " a seal of office, which shall have for its impression his name, officially, and the name of the state and county for which he was appointed," and " he must keep a fair register of all his notarial acts, signed by him, together with the date of the transaction."

So that it seems clear that they are public officers, whose duties are regulated by law, whose oaths are prescribed and recorded on the minutes of the court, and who are authorized to administer any oath not confined by law to a particular officer, and, therefore, this oath to an assignment. It follows that, until a successor was appointed or he was removed (Code, §1499), his office continued, and he remained de jure the notary for the bank where he acted, and filled that public office for the public as a commercial notary, and empowered to administer this oath to this assignor.

2. But suppose he was not de jure a public officer, was he not de facto such, and his acts good, when done in good faith by him for any of the public also acting in good faith? We think so most clearly. These de facto officers, their official acts, colore officii, must be recognized for public safety. The security of property, the vital interests of society, demand the recognition of their acts. It has been our law, or rather, that of our ancestors, ever since the war of the Roses in England, when the king, the fountain of office there, was changed by the winds of revolution, and with him, his appointees were swept from rightful or de jure offices, but all their acts while in office were held binding and valid-made so by statute and observed by both sides-all being recognized as de facto officers.

It is said that, because the number of these commercial notaries is not fixed by law, therefore they are not de facto officers when holding over, because they have no successors.

It strikes us that the argument is nothing else than a non sequitur. Whether one or a hundred fill the office, it is still an office. If, at the option of the appointing power, one may be enough or one hundred may be necessary in county or city, the office is still public, and successors are appointed for those who go out. But in the case before us, this notary public was appointed and acted for and at a bank, a necessary officer there, and when it was ascertained that his term of four years had expired, he was reappointed. Suppose another had been appointed and he had been rejected by the judge, would not that other have been his successor? Most assuredly. So that this office at this bank is a public office, administered by a man appointed to it, not by the bank, but by the state; not for the bank alone, but for the whole public, the bank and all dealing with it, or not dealing with it at all, but desiring an official act to be done by this appointee of the state about any business entrusted to him by the state; and even if out de jure, because his term of four years was gone, the act was that of a de facto officer, who had not been removed and to whose office no successor had been appointed.

The principle on which the whole doctrine of the recognition of de facto officers and their acts rests, is not how they happen to act de facto ,-whether the cause be an illegal appointment or election, or an illegal holding over, but it is the convenience of the public-the necessity of the thing-the impossibility of one always...