State ex rel. Bockmeier v. Ely

• Decision Date: 07 November 1907
• Parties: STATE ex rel. BOCKMEIER v. ELY, Sheriff.
• Court: North Dakota Supreme Court

16 N.D. 569

113 N.W. 711

STATE ex rel.

BOCKMEIER

v.ELY, Sheriff.

Supreme Court of North Dakota.

Nov. 7, 1907.

Syllabus by the Court.

A person acting and recognized by the public as judge of the district court of a county in a new district, before the law establishing such new district has become operative, by appointment of the Governor, under the erroneous belief that the new district was already in existence, is judge de facto, and his acts in that capacity valid as to third persons and the public.

Laws were passed defining the boundaries of the Ninth judicial district and increasing the number of judicial districts from 8 to 10. These laws took effect March 23, and July 1, 1907, respectively; but, by reason of conflicting provisions therein, the date when the new district should come into existence could not be ascertained from the face of the laws. The Governor construed them as creating the new district on the 1st day of July, 1907, and appointed a judge thereof, who duly qualified and entered upon the discharge of the duties of judge of such district on or about July 1, 1907, in good faith, and the judges of the Second and Eighth districts ceased to perform judicial duties in the counties which will compose the Ninth district. From an inspection of that part of the journals of the Legislative Assembly showing the proceedings on the passage of these laws, this court has determined that the intent of that body was that the new laws creating the new district and defining its boundaries should be held in abeyance until the election and qualification of a judge as therein provided. Held, that the person so appointed judge, and acting and recognized as such, was a judge de facto, and his official acts valid.

On application for writ of habeas corpus by a person convicted and sentenced at a term of court held by such appointee, and now imprisoned under the judgment rendered therein, held, that relief cannot be granted, and the application must be denied.

Application by the state, on the relation of Vincent Bockmeier, for a writ of habeas corpus to Fred L. Ely, sheriff of Pierce county. Writ denied.A. M. Christianson and Edward Engerud, for relator. Scott Rex and A. E. Coger (Purcell & Divet, of counsel), for respondent.

SPALDING, J.

This is an application on behalf of the relator for a writ of habeas corpus to release him from imprisonment under conviction for a criminal offense in the district court of Pierce county in August last, while Hon. A. G. Burr was acting and presiding as judge of such court. The facts are stipulated, and it is stipulated that the matter be disposed of upon petition for writ of habeas corpus, and that, if on the hearing this court shall determine that the petitioner is entitled to his release, the writ shall issue forthwith, and that, if this court shall determine otherwise, then its denial of such writ shall be taken as final in this proceeding.

The petition, among other things, alleges the organization and existence of the counties of McHenry, Pierce, and Bottineau; that the relator is a resident of the county of Pierce, which is a part of the Second judicial district; and that one John F. Cowan is the duly elected, qualified, and acting judge of said Second judicial district. It also sets forth the passage of an act of the Legislature defining the boundaries of the Second, Eighth, and Ninth judicial districts of the state of North Dakota, which was approved on the 23d day of March, 1907, and also of an act dividing the state into 10 judicial districts, approved on the same day, the former taking effect March 23, and the latter July 1, 1907, and that on or about the 1st day of July, 1907, the Governor of the state of North Dakota appointed A. G. Burr judge of the pretended Ninth judicial district, and issued to him a commission as judge in due form, and that thereafter, and on or about the 1st day of July, 1907, said Burr qualified as judge of said pretended Ninth judicial district, and since such appointment and qualification has performed the functions of district judge within said Ninth judicial district, and is now acting as such.

In the case of State of North Dakota ex rel. Henry Erickson, Plaintiff, v. A. G. Burr, Defendant (N. D.) 113 N. W. 705, a direct proceeding to oust the defendant from such office, decided at this term, we have held that the appointment of said Burr to the office of judge of the Ninth judicial district was illegal, for the reason that such district does not come into existence until the judge elected at the general election in 1908 qualifies. The only question to be determined in this proceeding is whether said Burr was, at the time of the conviction and pronouncing of judgment upon this relator, judge de facto. It is assumed that, if he was a de facto judge at such time, his official acts in that capacity are valid as to third persons and the public. Having quoted the two acts of the Legislature in question in full in the former opinion, it is unnecessary to do so here.

The books are full of cases attempting to define a de facto officer; but it is generally conceded that no precise definition can be given fitting all cases, and that each case must be determined largely upon its own facts. We have carefully examined a great number of authorities on this subject, and, as to the reason for courts holding officers illegally in possession of an office officers de facto, and their acts valid, find that the statement of this doctrine most generally accepted is contained in Plymouth v. Painter, 17 Conn. 585, 44 Am. Dec. 574, where the court says: “The principle established in these cases in regard to the proceedings of officers de facto, acting under color of title, is one founded in policy and convenience, is most salutary in its operation, and is, indeed, necessary for the protection of the rights of individuals and the security of the public peace. The rights of no person claiming title or interest under or through the proceedings of an officer having an apparent authority to act would be safe if he were obliged to examine the legality of the title of such officer up to its original source, and the title or interest of such person were held to be invalidated by any accidental defect or failure in the appointment, election, or qualification of such officer, or in the rights of those from whom his election or appointment emanated. Nor could the supremacy of the laws be maintained, or their execution enforced, if the acts of the officers having a colorable, but not a legal, title were to be deemed invalid. If the act of the justice issuing a warrant is to be invalid on the ground of the objection there made, all persons who would act in the execution of the warrant would act without authority. The constable who arrests and the jailer who receives a felon would be each a trespasser. Resistance to them would be lawful. Everything done by either of them would be unlawful, and the constable or the persons aiding him might in some possible instance become amenable even to a charge of murder for acting under an authority which they reasonably considered themselves bound to obey, and the invalidity whereof they were wholly ignorant.” So it is held in all but three or four courts of this country that the acts of a de facto officer are valid as to third persons and the public, and by “third persons” is meant those persons having business of an official character with such officer, and not third persons in the usual legal sense in which the term is used. This court has already followed the rule of the great majority in holding that there can be a de facto officer whose official acts will be valid. Cleveland v. McCanna, 7 N. D. 455, 75 N. W. 908, 41 L. R. A. 852, 66 Am. St. Rep. 670.

The leading American case on the subject of de facto officers, containing a definition of that officer which has been almost universally accepted as the most accurate and comprehensive of any given, is State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409, and in the opinion in that case the authorities are reviewed. Chief Justice Butler furnishes a definition which he says is sufficiently accurate and comprehensive to cover the whole ground. He says: “An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised: First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be; second, under color of a known or valid appointment or election, but where the officer has failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like; third, under color of a known appointment or election, void, because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; fourth, under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such.” The Supreme Court of North Carolina, in People v. Staton, 73 N. C. 546, 21 Am. Rep. 479, defines a de facto officer as one who goes in under color of authority or who exercises the duties of the office so long or under such circumstances as to raise a presumption of his right.

One of the earliest definitions was given by Lord Ellenborough, as “one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.” It seems to have originally been held that there must be color of title for the appointment; but Throop, in his work on Public Officers, at section...