Wingler, In re

• Citation: 58 S.E.2d 372,231 N.C. 560
• Decision Date: 22 March 1950
• Docket Number: No. 217,217
• Parties: In re WINGLER.
• Court: United States State Supreme Court of North Carolina

Page 372

58 S.E.2d 372

231 N.C. 560

In re WINGLER.

No. 217

Supreme Court of North Carolina.

March 22, 1950

Harry McMullan, Atty. Gen., for the State.

Trivette, Holshouser & Mitchell and J. H. Whicker, Jr., North Wilkesboro, for Town of North Wilkesboro, amicus curiae.

ERVIN, Justice.

A person who undertakes to exercise the functions of a judicial office on a particular occasion may be a judge de jure, or a judge de facto, or a mere intruder.

Since he is exercising the office of a judge as a matter of right, a judge de jure meets this three-fold test: (1) He possesses the legal qualifications for the judicial office in question; (2) he has been lawfully chosen to such office; and (3) he has qualified himself to perform the duties of such office according to the mode prescribed by law. These things being true, he has a complete title to his office; his official acts are valid; and he can not be ousted. Norfleet v. Staton, 73 N.C. 546, 21 Am.Rep. 479.

A judge de facto may be defined as one who occupies a judicial office under some color of right, and for the time being performs its duties with public acquiescence, though having no right in fact. Cooley: Constitutional Limitations, 8th Ed., Vol. 2, page 1355. A person will be deemed to be a de facto judge when, and only when, these four conditions concur: (1) He assumes to be the judge of a court which is established by law; (2) he is in possession of the judicial office in question, and is discharging its duties; (3) his incumbency of the judicial office is illegal in some respect; and (4) he has at least a fair color of right or title to the judicial office, or has acted as its occupant for so long a time and under such circumstances of reputation or acquiescence by the public generally as are calculated to afford a presumption of his right to act and to induce people, without inquiry, to submit to or invoke official action on his part on the supposition that he is the judge he assumes to be. For all practical purposes, a judge de facto is a judge de jure as to all parties other than the State itself. His right or title to his office can not be impeached in a habeas corpus proceeding or in any other collateral way. It can not be questioned except in a direct proceeding brought against him for that purpose 'by the attorney-general in the name of the state, upon his own information or upon the complaint of a private party.' pursuant to the statutes embodied in Article 41 of Chapter 1 of the General Statutes, G.S. § 1-514 et seq. So far as the public and third persons are concerned, a judge de facto is competent to do whatever may be done by a judge de jure. In consequence, acts done by a judge de facto in the discharge of the duties of his judicial office are as effectual so far as the rights of third persons or the public are concerned as if he were a judge de jure. The principles enunciated in this paragraph arose at common law, and have been accorded full recognition in this State. State v. Harden, 177 N.C. 580, 98 S.E. 782; State v. Shuford, 128 N.C. 588, 38 S.E. 808; State v. Turner, 119 N.C. 841, 25 S.E. 810; Hughes v. Long, 119 N.C. 52, 25 S.E. 743; Van Amringe v. Taylor, 108 N.C. 196, 12 S.E. 1005, 12 L.R.A. 202, 23 Am.St.Rep. 51; State v. Lewis, 107 N.C. 967, 12 S.E. 457, 13 S.E. 247, 11 L.R.A. 105; State v. Speaks, 95 N.C. 689; Norfleet v. Staton, supra; Ellis v. N. C. Institution, 68 N.C. 423; Culver v. Eggers, 63 N.C. 630; Swindell v. Warden, 52 N.C. 575; Commissioners of Trenton v. McDaniel, 52 N.C. 107; Burton v. Patton, 47 N.C. 124, 62 Am.Dec. 194; Gilliam v. Reddick, 26 N.C. 368; Burke v. Elliott, 26 N.C. 355, 42 Am.Dec. 142.

Moreover, the legislature has conferred express approval upon the de facto doctrine in the case of persons actually inducted into office in the manner prescribed by law. A statute, which had its genesis in Chapter 38 of the Laws of 1844 and is now codified as G.S. § 128-6, provides that 'any person who shall, by the proper authority, be admitted and sworn into any office, shall be held, deemed, and taken, by force of such admission, to be rightfully in such office until, by judicial sentence, upon a proper proceeding, he shall be ousted therefrom, or his admission thereto be, in due course of law, declared void.'

A usurper is one who undertakes to act officially without any actual or apparent authority. Since he is not an officer at all or for any purpose, his acts are absolutely void, and can be impeached at any time in any proceeding. State v. Shuford, supra; Van Amringe v. Taylor, supra; Norfleet v. Staton, supra; Keeler v. City of New Bern, 61 N.C. 505.

Practical procedural rules have been devised to enforce these principles in actual litigation. Where the validity of an act of a person acting in a judicial office on a particular occasion is assailed in a collateral proceeding before another court on the theory that he had no right to the office, the court may inquire into his title to the judicial office far enough to determine whether he was a judge de jure, or a judge de facto, or a mere usurper at the time he performed the act in question. If such inquiry reveals that he was at least a judge de facto at that time, the court can proceed no further in its investigation of the title to the office; for the official act of a judge de facto is as binding as that of a judge de jure. U. S. v. Alexander, D.C., 46 F. 728.

When these legal principles are laid alongside the record in this proceeding, it is immediately evident that Mayor McNeil did not act as a mere usurper in trying the petitioner and committing her to jail. He was undoubtedly a judge de jure from the time of his qualification as Mayor until June 7, 1949. As the Town Commissioners did not appoint any one to succeed him in the judgeship of the Special Court under Chapter 1142 of the 1949 Session Laws, a cogent argument might be advanced to sustain the proposition that he has remained a judge de jure since June 7, 1949, under G.S. § 128-7, which stipulates that 'all officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.' Markham v. Simpson, 175 N.C. 135, 95 S.E. 106.

Be this as it may, it can not be gainsaid that Mayor McNeil was at least a judge de facto when he took the official action resulting in this proceeding. Since Section 29 of Article II for bidding the passage of 'any local, private or special act or resolution relating to the establishment of courts inferior to the Superior Court' did not become a part of the Constitution of North...