State v. Louis Levy

• Decision Date: 02 November 1943
• Parties: STATE v. LOUIS LEVY
• Court: Vermont Supreme Court

34 A.2d 370

113 Vt. 374

STATE v. LOUIS LEVY

Supreme Court of Vermont

November 2, 1943

October Term, 1943.

Powers of De Facto Officers.

1. A question of jurisdiction may be raised at any stage of a case and is never out of time.

2. If a trial court is without jurisdiction the appellate court has none.

3. The words "eligible to any appointment," in chapter 2 section 50 of the Vermont constitution, are to be construed as having reference to the qualification to hold office, and not to the choosing or election to office, and the disqualification must exist at the time the term of office begins.

4. One who holds an office of profit or trust under the authority of Congress, is, under Chap. 2, Sec. 50 of the Vermont Constitution, ineligible to appointment as city grand juror this being a judiciary office. Whether the office of referee in bankruptcy is "an office of profit or trust under the authority of Congress," as defined in Chap. 2, Sec. 17 of the Vermont Constitution is not decided.

5. The respective duties of a referee in bankruptcy and of a grand juror are not such as to require an application of the common law rule prohibiting a public officer from holding two incompatible offices at the same time.

6. One who holds the office of referee in bankruptcy, and has been appointed city grand juror, and has qualified as such, is until his appointment is vacated, at least a grand juror de facto, whose acts are valid as respects third persons.

7. A de facto officer cannot justify his acts as such in any suit to which he is a party.

8. When a complaint is signed by a person who is de facto a city grand juror the proceedings may not be challenged upon the ground that the officer is illegally exercising his office.

PROSECUTION for petit larceny, Montpelier Municipal Court, H. William Scott, J. The respondent was convicted and appealed. In Supreme Court he filed a plea to the jurisdiction as set forth in the opinion.

Judgment that the plea to the jurisdiction is insufficient and it is dismissed. Let the cause stand for hearing upon the respondent's exceptions taken on trial.

Theriault & Hunt for the respondent.

Joseph W. Foti, grand juror, for the State.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

MOULTON

This respondent was convicted of the crime of petit larceny in the Montpelier Municipal Court, and brought the cause before us upon exceptions. He has filed in this Court a plea to the jurisdiction on the ground that the process and warrant, upon which he was arrested and brought to trial and judgment, were issued without lawful oath or affirmation first made, in contravention of Art. II of the Declaration of Rights of the Inhabitants of the State of Vermont, as contained in Chapter 1 of our State Constitution. The plea sets forth that the complaint was made by Joseph W. Foti, upon his oath of office as City Grand Juror of the City of Montpelier; that Mr. Foti could not and did not lawfully hold and exercise that office, because at the time of his appointment and qualification, and at the time of making the complaint, he held and exercised the office of Referee in Bankruptcy for Washington County, and that the complaint was, therefore, without lawful authority and null and void. The sufficiency of this plea is the issue for our determination.

A. question of jurisdiction may be raised at any stage of a case and is never out of time. State v. Barnett, 110 Vt. 221, 228, 3 A.2d 521. If the trial court is without jurisdiction the appellate court has none. In re Everett's Estate, 113 Vt. 265, 33 A.2d 223, 224.

Chapter 2, sec. 50 of the Vermont Constitution is as follows: "Nor shall any person holding any office of profit or trust under the authority of Congress be eligible to any appointment in the Legislature, or to any executive or judiciary office under this State." The words "eligible to any appointment" are to be construed as having reference to the qualification to hold office, and not to the choosing or election to office, and the disqualification must exist at the time the term of office begins. State ex rel Perkins v. Edwards, 99 Vt. 1, 5, 130 A. 276. According to our law a city or town grand juror is an informing and prosecuting officer. P. L. secs. 2339-2348 incl. It is a matter of common knowledge that in our cities and larger towns the incumbent of this office is almost invariably a member of the bar. It is a judiciary office, since it is "of or pertaining to the administration of justice or the courts." 2 Bouvier Law. Dict. (Rawle's 3rd Revision) tit. "Judiciary." Assuming but not deciding, that the office of Referee in Bankruptcy is "an office of profit or trust under the authority of Congress," as defined in Chap. 2, sec. 17 of the Vermont Constitution, which provides that the words "shall be construed to mean any office created directly or indirectly by Congress, and for which emolument is provided from the Treasury of the United States, " Mr. Foti was ineligible to hold and exercise the office of City Grand Juror. Aside from the Constitutional provision above quoted, it does not appear that the respective duties of a Referee in Bankruptcy and a City Grand Juror are such as to require an application of the common law rule prohibiting a public officer from holding two incompatible offices at the same time. Howard v. Harrington, 114 Me. 443, 96 A. 769, 770, L.R.A. 1917A, 211, 212, and cas. cit. Annotation pp. 216 ff.

But it does not follow that if Mr. Foti was ineligible to hold office as City Grand Juror his acts done under the color of his authority were, so far as third persons were concerned null and void. In McGregor v. Balch, 14 Vt. 428, 436, 39 Am Dec 231, there was a plea to the jurisdiction of a justice of the peace on the ground that he was, at the time of the signing of the writ and at the time of trial, a postmaster and therefore ineligible under the Constitution to the office of justice of the peace and unauthorized to take cognizance of the action. It was held that although the office of postmaster was one of profit and trust under the authority of Congress, and the office of justice of the peace a judiciary one he was an officer de facto, and his acts as respecting third persons were valid. The plea was held insufficient. The distinction between officers de jure and officers de facto is thus stated by Williams, C. J.: "An officer de jure is clothed with all the power and authority appertaining to the office and neither his doings nor his acts, within the limits of his authority, can be questioned anywhere. The acts of an officer ...