State v. Ness, 9388

• Decision Date: 17 September 1954
• Docket Number: No. 9388,9388
• Citation: 75 S.D. 373,65 N.W.2d 923
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Lloyd NESS, Dale Ness and Howard Ness, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 923

65 N.W.2d 923

75 S.D. 373

STATE of South Dakota, Plaintiff and Respondent, v. Lloyd NESS, Dale Ness and Howard Ness, Defendants and Appellants.

No. 9388.

Supreme Court of South Dakota.

Sept. 17, 1954.

Ralph A. Dunham, Atty. Gen., Benj. D. Mintener, Asst. Atty. Gen., Samuel W. Masten, States Atty., Canton, for respondent.

Henry C. Mundt, Acie W. Matthews, Sioux Falls, for appellants.

ROBERTS, Judge.

The defendants were tried in the municipal court of Canton on a complaint charging them with assault and battery upon the person of Godfrey Krutch and found guilty. Reversal of the judgment is sought on the grounds (1) that the judgment is void in that the municipal court of the City of Canton was not legally established; (2) that the evidence adduced was insufficient to warrant submission to the jury; (3) that the court erred in restricting cross-examination by counsel for defendants; (4) that misconduct of the State's Attorney caused prejudice against defendants; and (5) that the court did not instruct the jury with reference to demonstrations on the part of attendants at the trial.

SDC 32.0702 authorizes the establishment of a municipal court in 'Any city in this state having a population of five thousand or over, or any city which is a county seat, having a population of one thousand five hundred or over'. The City of Canton, a county seat having a population of less than five thousand, established under and pursuant to the terms of this statute a municipal court. Section 1, Article V, of the constitution provides that the judicial powers of the state except as in the constitution otherwise provided shall be vested in the supreme court, circuit courts, county courts and justices of the peace, and such other courts as may be created by law for cities and towns. Section 23, Article V, provides in part: 'In cities having a population of five thousand or over the legislature may provide, in lieu of police magistrates, for municipal courts, the judges whereof shall be chosen in such manner as the legislature shall prescribe'. Appellants challenge the constitutionality of the statute and the legal existence of the municipal court upon the ground that the legislature was without power to authorize the establishment of a municipal court in a city not having the population required by the constitution.

The rule that the acts of a de facto court or judge cannot be attacked collaterally has been invoked by counsel for the respondent.

This court in Merchants' Nat. Bank v. McKinney, 2 S.D. 106, 48 N.W. 841, 845, adopted the definition of a de facto officer laid down in State v. Carroll, 38 Conn. 449, 9 Am.Rep. 409: "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 are 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 had 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 election or appointment, 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 de facto doctrine is grounded upon policy and convenience. It is for the protection of persons who deal with those who apparently are officers in fact. It would be contrary to the interests of the public to permit the acts of a de facto officer to be collaterally impeached. As pointed out by the court in Burt v. Winona & St. P. R. Co., 31 Minn. 472, 18 N.W. 285, 287, 289: 'It would be a matter of almost intolerable inconvenience, and be productive of many injustices, of individual hardship and injustice, if third persons, whose interests or necessities require them to rely upon the acts of the occupants of public offices, should be required to ascertain at their peril the legal right to the offices which such occupants are permitted by the state to occupy.'

There can be no de facto incumbent of an office not existing by virtue of a statute or ordinance. This conclusion applies where an act creating an office has been held unconstitutional or has been repealed. According to the weight of authority, however, a legislative act although unconstitutional may give such potential existence to an office as to make its incumbent a de facto officer. 14 Am.Jur., Courts, Sec. 10. In Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 1125, 30 L.Ed. 178, a leading case upholding a contrary view, the court said: 'An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.' That case was cited with approval by this court in Merchants' Nat. Bank v. McKinney, supra, wherein the existence of de jure offices appeared. Whether the scope of the de facto doctrine is limited to de jure offices was not there involved.

In Wendt v. Berry, 154 Ky. 586, 157 S.W. 1115, 1119, 45 L.R.A.,N.S., 1101, Ann.Cas.1915C, 493, the court in holding that the acts of public officers exercising authority under a statute until it was declared unconstitutional were binding said: 'Acts of the Legislature are presumed to be valid until declared void by the courts. The people generally and rightfully so regard them. The power and authority of public officers who exercise the duties of office under legislative enactments is recognized by all persons with whom they have dealings in their official capacity, and the public good imperatively demands that validity should be given to the acts of these officers when they are performing duties within the scope of their public authority. If individuals dealing with public officers might in every instance question their authority or deny their right to exercise the office until the courts of last resort had given the sanction of their approval to the validity of the legislation under which the office was established, the conduct of public affairs would be involved in interminable confusion and doubt. No person would feel secure either in his personal or his private rights. Confusion and uncertainty would attend every official act that was performed. Such a condition as this would be disastrous to the peace and welfare of society.'

In Marckel Co. v. Zitzow, 218 Minn. 305, 15 N.W.2d 777, 779...