B. Altman & Co. v. Wall

71 So. 318 | Miss. | 1916

Sykes, J.,

delivered the opinion of the court.

The appellants, B. Altman & Co., instituted an attachment suit against Mrs. W. D. Wall in the court of[ T. J. Taylor, mayor of the town of Sardis, and ex officio-' justice of the peace in and for said town. The question before this court is whether or not said Taylor was-, either a de facto or a de jure justice of the peace at the time of the issuance of the attachment. The facts relating to this question are as follows: T. J. Taylor was elected mayor of the town of Sardis for a term of two-years, and duly qualified as such and. fulfilled the duties of the office for the term. One year after his said election he accepted and qualified as deputy sheriff of the county of Panola, and entered upon and fulfilled the duties of the office of deputy sheriff during the term of his appointment. At the time of the suing out of the attachment in this case he was acting both as mayor and ex officio justice of the peace, and also as deputy sheriff' under this appointment. The appellee contends that under section 2 of article 1 of the Constitution of the state of Mississippi, which reads:

“No person or collection of persons, being, one or belonging to one of these departments, shall exercise' any power properly belonging to either of the others. The acceptance of an office in either of' said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other -departments”

—that the said Taylor vacated the office of mayor and ex oficio justice of the peace as soon as he qualified and entered upon the duties of the office of deputy sheriff, and that his act in issuing or attempting to issue the attachment iü this ease was a nullity and was absolutely void. „

It is the contention of the appellant that the office of mayor is an executive one, under the authority of the case of State v. Armstrong, 91 Miss. 513, 44 So. 809, and that, the office of sheriff being also an executive office, then the acceptance of the second office was not violative of the above article of the Constitution. It is unnecessary for ns to pass on this proposition in this case.

The agreed statement of facts shows that Taylor continued to exercise the duties of mayor and ex oficio justice of the peace until his term of office as mayor expired. Consequently he was, to say the least,' a de facto mayor and ex officio justice of the peace when he issued the writ of attachment. Section 3473 of the Code of 1906 makes the official acts of any person in possession of a public office and exercising the functions thereof valid and binding as official acts in regard to all person^ interested or affected thereby, whether such persons he lawfully entitled to hold the office or not.

This question has been before this court where special judges were commissioned to try cases, owing to the disqualification of regrilar judges. In the case of Powers v. State, in 83 Miss. on page 702, 36 So. 8, the opinion is in part as follows:

. . This being so, it brings us at last to the sole question of whether the acts of the special judge are void for the reason only that he failed to take, be^ fore entering upon the discharge of his duties, the oath prescribed by law. It is contended by counsel for appellant that, the oath of office being a constitutional requirement, it is indispensable to the legitimate exercise of any of the functions of office, and that the acts of such an incumbent cannot be upheld upon the ground that he is a fie facto officer, for the reason, it is said, that he is not rightfully in possession and control of the office. This is a question on which a great variety of opinions has been expressed, and many authorities can be cited sustaining the contentions here made. We, adopt, however, as the true view, that one in possession of an office, judicial or not, who exercises the functions of the position, is to be considered, as to all persons dealing with him, rightfully in possession of the office, and that his acts as such are valid and binding, and this, too, whether he fails to take the oath required, or even though it should be judicially determined that the law under which he was appointed or selected was unconstitutional. The orderly dispatch of business, the validity which is implied of all judicial decisions, the necessity that official acts should not be set aside by any future happening, and that rights vested and causes adjudicated by any tribunal should not afterwards be disturbed and unsettled for any cause, all demand the recognition of the rule, and show the reason and wisdom on which it is founded. In the instant case a disqualification existed as to the regular circuit judge, and the special judge who presided herein was duly appointed and commissioned to fill such position, and by virtue of such appointment he assumed such position and discharged the duties thereof. He was therefore not a usurper, but a • de facto officer, and to his acts as such the law attaches validity. ‘Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts aré concerned. It is enough that he is clothed with the insignia of office and exercises its powers and functions.’ Field, J., in Norton v. Shelby Co., 118 U. S. 425 [Sup. Ct. 1121, 30 L. Ed. 178].”

Reversed and remanded.