termine. Such acts would, however, according to well-settled principles, be legal and valid, so far as third parties were concerned.

But where a person is constitutionally ineligible to an office, he will not be the lawful incumbent thereof, although he may be elected, obtain a certificate of his election from the examining board, take the oath of office, and execute the bond prescribed by law. Are the acts of the officer in such a case legal to any extent; and, if so, to what extent are they legal?

As he holds his office by color of right, and acts as sheriff, all his acts as such are regarded as lawful, so far as third parties are concerned. Public policy requires that they should be so regarded, and that his official authority should not be questioned collaterally. He acts as the sheriff of the county, and it is to the interest of its citizens that his acts should be declared to be valid, so long as he continues thus to act. It has been accordingly held that a person unconstitutionally commissioned a justice of the peace was an officer de facto, and his acts valid as to third persons. Justices of Jefferson County v. Clark, 1 T. B. Mon. 86; Wilson v. King, 3 Litt. 459, 14 Am. Dec. 84. He remains an officer de facto, until his office shall be declared to be vacant or forfeited, by a direct proceeding against him, instituted and carried on for that purpose. Stokes v. Kirkpatrick, 1 Metc. 143.

Can he, however, in an action against himself, for acting as sheriff. and seizing and selling the property of the plaintiff without lawful authority, defeat the right of recovery, by showing that he acted as an officer de facto, or by relying on his certificate of election and qualification in the county court, as conclusive evidence that he was the lawful sheriff of the county?

The principle is well established that, although the acts of an officer de facto are valid as to third persons, nevertheless they are invalid so far as he is himself concerned; and his mere color of title to the office will not avail him as a protection in actions against him for trespasses on person or property. Rodman v. Harcourt, 4 B. Mon. 229.

It only, therefore, remains for us to inquire whether the certificate of election and the fact that he qualified and gave bond in the county court, as prescribed by law, furnish conclusive evidence that he was the lawful incumbent of the office of sheriff of Russell county.

The examining board is constituted by law for the mere purpose of comparing the polls, and giving a certificate of his election to the candidate having the largest number of votes, according to the returns which have been made by the officers who conducted the election at the different places of voting in the county. It is not the duty of this board to examine into or decide upon the qualifications of the candidates for the office to which they are elected. Consequently the certificate which it issues to a candidate that he is elected to an office is not even prima facie evidence that he was eligible to the office, although conclusive evidence that he was elected thereto, unless his election be contested before the proper board.

The duty which the law devolves upon the county court, in regard to the sheriff, only extends to the administration of the appropriate oath of office, and the taking of a bond with sufficient sureties to be approved of by it. The performance of this duty is incumbent on the county court whenever a person claiming to be entitled to the office. of sheriff presents a certificate of his election from the proper board. The court has no power to inquire into his eligibility, or to refuse to permit him to qualify and execute a bond according to law, on the ground that he is ineligible to the office. Consequently, the fact that he has qualified and given an official bond in the county court as sheriff cannot be relied upon to prove his eligibility to the office.

* * *

We decide, therefore, in this case, that as Miller acted under color of title to the office of sheriff the sale made by him under the executions in his hands is sufficient to protect the purchaser. But if he were constitutionally ineligible to the office of sheriff when elected, the law will not so far encourage a violation of the Constitution as to permit him to protect himself under a mere color of authority, exercised in opposition to an express mandate of the Constitution, when, too, he must have known that his title to the office was not legal, and, therefore, that all his acts as sheriff were without authority and against law.

The court below, therefore, erred in rejecting the evidence, which was offered to be introduced on the trial, to prove that Miller was not a resident of Russell county when he was elected to the office of sheriff. Wherefore the judgment is reversed, and cause remanded for a new trial and further proceedings not inconsistent with the principles of this opinion.

The judgment for the appellant's costs in this court must be against Miller alone.23

SECTION 18.-DE FACTO OFFICE AND AUTHORITY

PEOPLE ex. rel. BUSH v. COLLINS.

(Supreme Court of New York, 1811. 7 Johns. 549.)

An alternative mandamus was directed to a town clerk, commanding him to record the survey of a road, pursuant to the act (Laws 24th Sess. c. 186), or show cause; and the clerk returned that he did not record the survey because the commissioners had not taken the oath of office, and filed a certificate of the oath with the clerk, according to the act.

23 See Courser v. Powers, 34 Vt. 517 (1861).

*

PER CURIAM.24 * * Nor is the allegation material, in this case, that the commissioners had not caused a certificate of their oath of office to be filed in the town clerk's office. If the commissioners of highways acted without taking the oath required by law, they were liable to a penalty; or the town, upon their default in complying with the requisition of the statute, might have proceeded to a new choice of commissioners. But if the town did not (and it does not appear that they did in this case), the subsequent acts of the commissioners, as such, were valid, as far as the rights of third persons and of the public were concerned in them. They were commissioners de facto, since they came to their office by color of title; and it is a well-settled principle of law that the acts of such persons are valid when they concern the public, or the rights of third persons who have an interest in the act done; and this rule is adopted to prevent the failure of justice. The limitation to this rule is as to such acts as are arbitrary and voluntary, and do not affect the public utility. The doctrine on this subject is to be found at large, in the case of Rex v. Lisle, Andrews, 263. It certainly did not lie with the defendant, as a mere ministerial officer, to adjudge the act of the commissioners null. It was his duty to record the paper; valeat quantum valere potest. It was enough for him that those persons had been duly elected commissioners within the year, and were in the actual exercise of the office. It may be that the oath was duly taken, and that the omission to file the certificate of it was owing to casualty or mistake. The validity of the title of the commissioners to their office must not be determined in this collateral

way.

The opinion of the court, accordingly, is that the rule for a peremptory mandamus be granted.25

PEOPLE v. HOPSON.

(Supreme Court of New York, 1845. 1 Denio, 574.)

The defendants were indicted for assaulting and beating Peter Lascells, a constable of the town of Salisbury, Herkimer county, and resisting him in the execution of his duty as such constable.

BRONSON, C. J.26*** The next question is on the offer to show that Lascells had not taken the oath of office, or given security, and so was not a legal officer. The evidence would be proper if Lascells, instead of the people, was the party complaining of an injury. If he were suing to recover damages for the assault, it would probably

24 Only a portion of the opinion is printed.

25 See State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409 (1871); also an article on De Facto Office by K. R. Wallach, in 22 Political Science Quarterly, 450.

26 Only a portion of the opinion is printed.

be a good answer to the action that he was not a legal officer, but a wrongdoer, who might be resisted. And clearly he cannot recover fees, or set up any right of property, on the ground that he is an officer de facto, unless he be also an officer de jure. Riddle v. County of Bedford, Serg. & R. (Pa.) 386; Keyser v. McKissan, 2 Rawle (Pa.) 139; Fowler v. Beebe, 9 Mass. 231, 6 Am. Dec. 62; Green v. Burke, 23 Wend. 490; People v. White, 24 Wend. 526. When one man attempts to exercise dominion over the person or property of another, it becomes him to see that he has an unquestionable title.

But it is equally well settled that the acts of an officer de facto, though his title may be bad, are valid so far as they concern the public, or the rights of third persons who have an interest in the things done. Society could hardly exist without such a rule. I will only refer to two or three cases where many of the others have been collected. People v. Stevens, 5 Hill, 630; Green v. Burke, 23 Wend. 490; Taylor v. Skrine, 2 Tread. Const. (S. C.) 696. Now here, although Lascells is a witness, he is not a party; nor is this a proceeding for his benefit. The people are prosecuting for a breach of the public peace; and it is enough that Lascells was an officer de facto, having color of authority. The rights of the creditor, the due administration of justice, and the good order of society all concur in requiring that he should be respected as an officer until his title has been set aside by due process of law. The evidence offered was properly rejected.

PEOPLE ex rel. WINSTANLEY v. WEBER.

(Supreme Court of Illinois, 1878. 89 Ill. 347.)

This was an application in this court by Thomas Winstanley, as city treasurer of the city of East St. Louis, for a writ of mandamus against Herman G. Weber, county collector of St. Clair county, to compel him to pay over to the relator moneys collected by him and taxes belonging to the city of East St. Louis. The defendant's plea presented the question of the validity of the relator's election.

Mr. Justice DICKEY delivered the opinion of the court.28

While the acts of an officer de facto are valid, in so far as the rights. of the public are involved, and in so far as the rights of third persons.

27 Accord: Heath v. State, 36 Ala. 273 (1860); State v. Dierberger, 90 Mo. 369, 2 S. W. 286 (1886). See Commonwealth v. Kane, 108 Mass. 423, 11 Am. Rep. 373 (1871).

See, also, Rodman v. Harcourt, 4 B. Mon. (Ky.) 224, 230 (1843), warrant of justice de facto protects constable; Bedford v. Rice, 58 N. H. 446 (1878), on action for penalty by town sufficient that health officers were officers de facto only. See, also, Patterson v. Miller, 2 Metc. (Ky.) 493 (1859), ante, p. 109, purchaser from de facto sheriff protected.

28 Only a portion of the opinion is printed.

FR.ADM.LAW.-8

having an interest in such acts are concerned, still, where a party sues or defends in his own right as a public officer, it is not sufficient that he be merely an officer de facto. To do this he must be an officer de jure. As an officer de facto he can claim nothing for himself. People ex rel. Sullivan v. Weber, 86 Ill. 283. * * *

The commission under which relator claims title recites that it is issued in pursuance of an election held on the 16th day of April, 1878, and the answer to relator's petition states that "it is from this pretended election that relator obtains all the title he has to the pretended office claimed by him." This allegation of the answer is confessed by demurrer.

* * * 29

* * *

In the case of Stephens v. People ex rel., 89 Ill. 337, we have held void the election through which relator claims to have acquired the supposed office. It follows that the relator is not a public officer of the character held necessary to entitle him to the relief sought. The application for a writ of mandamus must be denied.

29 Accord: Romero v. United States, 24 Ct. Cl. 331 (1889).