38 Iowa 229 | Iowa | 1874
Lead Opinion
— The facts of the case are as follows: The land in controversy is situated in Fairview township, Jones county, and was sold for the taxes of 1867, to defendant, and a deed duly made therefor. As the law then stood, in addition to township assessors, there was chosen by each incorporated town at its municipal election, an assessor who listed all property within its limits. The township assessors were elected at the general election for state and county officers. Acts of 9th Gen. Ass., Ch. 173, § 2; Acts 10th Gen. Ass., Ch. 26, § 2. The incorporated town of Anamosa is in Fairview township. At the general election of 1866, one Arnold was elected assessor of Fairview township, and one Dott, at the same election, and not a municipal election, was chosen assessor of Anamosa, and gave bond and took the oath of office as required by law. It appeal’s that both of these assessors were voted for by all the electors of the township, including those who lived within the limits of the town of Anamosa. The Wapsipinicon river divides the township. Anamosa is in that part of the territory lying north of the river. The land in controversy is a considerable distance from the town. From 1863, until after the assessment of the taxes in question, it was the custom of the assessor of Anamosa to list the lands north of the river and lying without the down. The other part of the township was assessed by the township assessor: No question seems to have been raised during this time as to the regularity of such assessments, which were made under a misapq>rehension of the law. The plaintiff is a non-resident of the state.
The only question we are called upon to decide is this: Was the assessment of the land in 1867, by Dott, the assessor of Anamosa, valid? _
Dott, as the assessor of Anamosa, listed lands of the township, including the tract in controversy. He did not assess them as the township assessor, and it is not claimed that he
In order to support the acts of one on the ground that he is a de facto officer, they must be done under color of the office, the duties of which must have been assumed and discharged by the person claiming to fill the office. This we think is essential to give one the character of an officer de facto, and render 1ns acts vaUd. These views, we think, are not contested by appellant’s counsel, and are certainly in accord with all the authorities to which we have been referred.
The fact that Dott made the assessment under a custom extending his powers and duties in a manner, and to subjects unauthorized by law, which was acquiesced in by the officer charged with such duties cannot make his- act valid. Customs of this kind cannot abrogate the law. Neither-can it be pretended that - a mistaken idea as to the extent of the powers and duties of an officer, though honestly entertained by himself and the. people, will validate acts done in excess of his authority.
The judgment of the District Court in overruling the motion to dissolve the injunction is therefore
Affirmed.
Dissenting Opinion
dissenting. — It seems to me that Dott was the assessor de facto of the territory actually assessed by him; and that the distinction sought to be made by the,foregoing opinion respecting the name under which he assumed to act, has no foundation in principle, and it certainly has no support in precedent. True, he was denominated the assessor for Anamosa, and was elected by the voters of the entire township of Fairview; while another, elected by the same voters, was styled the assessor of Fairview township. Each was an assessor de jwre within and for the territory indicated by his title, notwithstanding illegal votes may have been cast at their election. Any mere irregularity or collateral illegality in an election does not change the character of an officer de jure, into one de facto, merely. If the election or appointment was wholly without authority, then such would be its effect. The People v. White, 24 Wend., 520; Cocke v. Halsey, 16 Peters, 71; The State v. Bloom, 17 Wis., 521; The State v. Menmore. 14 Wis., 163; Laver v. McGlachlin, 28 Wis., 364; The Commonwealth v. McComb, 50 Penn. St., 436; Brown v. O’Oonnell, 36 Conn., 432.
Although Dott was elected by the voters living within the territory north of the river, and outside the limits of Anamosa, yet, as to that territory he was an assessor de facto, because they had no authority to elect him. He did, however, exercise the duties of the office of assessor over that people and territory, and there has been such a continued acquiescence on the part of the public as does afford presumption at least of a colorable election, or appointment. This constitutes him an officer de facto. Wilcox v. Smith, 5 Wend., 231; Ex parte Strong, 21 Ohio St., 610; Carleton v. The People, 10 Mich., 250; Kimball v. Alcorn, 45 Miss., 151; Brown v. Lunt, 37 Me., 423; Gilliam v. Reddick, 4
And, it also appears to me, that the fact that Dott was styled the assessor for Anamosa, cannot defeat the public right to the protection usually afforded by the acts of an officer defacto. To so hold, would be to give to the name of an officer, the power to limit and control its duties. ITe was the assessor in fact of the territory outside of Anamosa, and was so recognized and accepted by the public, and no other person claimed to exercise the duties of that office. It is this fact character, and not the name he bore, nor the technical legal right in another, which affords the protection to the public.
In the recent case of The State v. Carroll, 38 Conn., 449, s c., 9 Am. Rep., 409, the question respecting an officer de facto, underwent a thorough examination, and it was held, “ 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 tlje office were exercised.
First. Without a known appointment or election but under such circumstances of reputation or acquiescence, as were
Second. Under color of a known and valid appointment or election, but when the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond or the like.
Thvrd. Under color of a known election or appointment, void, because the office was not eligible, or because there was a want of power in the electing’ or appointing, 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.”
According to this, or any other case we have seen, the above opinion does not appear to be well grounded. For these reasons I dissent; but a majority say the opinion shall stand, and the judgment be
Affirmed.