137 Ky. 189 | Ky. Ct. App. | 1910
Opinion of the Court by
— Affirming.
A proceeding was instituted in the Henderson county court by various petitioners under section 2380, Ky. Stat., to have established a drainage ditcb, known in the record as the ‘ ‘ Sellars Ditch. ’ ’ A large area was to be affected by the proposed improvement and 200 and more persons were made defendants to the proceeding. The viewers’ report brought, forth remonstrances from some of the parties, thus presenting an issue to be tried in the proceeding. It developed that the presiding judge of the county court was made a party, being assessed some small amount, about $15 in the event the ditch was established. Upon that fact being suggested,
In the meantime Judge Givins had died. When the case came on again in the county court, the regular judge, although previously declining to sit in the case, acted as the judge in entering the necessary orders for carrying into effect the judgment of the higher court. The commissioners apportioned the costs of the proceeding and of the construction according to the reviewers’ reports as modified by the judgment of the circuit court, and the contract was let for the construction. The apportioned costs were certified to the sheriff for collection, as taxes are collected, from those parties who were
This suit was then brought in the circuit court by appellants, some 25 of the parties to the original proceeding (though neither petitioners or remonstrants), to enjoin the levy and collection of the assessments against them on the alleged ground that the judgment of the county court levying the assessment, and all proceedings under it, were void. A number of grounds were asserted in the petition of appellants as basis for this contention. The circuit court sustained a general demurrer to the petition, and, the plaintiffs electing to stand on the sufficiency of its allegations, it was dismissed, and they have appealed. In view of the fact that the able counsel for appellants-present in their argument on this appeal but two of the grounds asserted in the petition, we do not notice the others. The two presented are (1) that the selection of Judge G-ivins as special county judge in the proceeding* was unauthorized, and was contrary to the statute and void; (2) that the regular county judge, being a party in fact and in interest in the proceeding, was- disqualified to act as judge of that court in that case upon its return from the circuit court, and that his judgment was void because of that fact. Ky. Stat. See. 1059, is relied on by appellants in support of their first ground. It reads: “Whenever the county judge, shall be absent, or unable, from any cause, to attend or hold the county court, or preside at any trial or prosecution, * * * it shall be the duty of the county clerk to at once give notice of the fact to the justice of the peace of the county residing nearest to the courthouse, who shall, upon such notice, hold the court, and a jxrstice who holds the court shall be invested,
Whether it is competent for parties to so agree in the county court that they would after judgment be estopped in an attack upon the proceeding collaterally is not necessary to decide in this case. Nor do we pass upon the effect of the tacit assent of the appellants, parties to the proceeding in the county court, in suffering the special, judge, selected by agreement of some of the parties to the case, and not objected to by any of the parties, to preside as judge of the court. That court had jurisdiction of the proceeding and of the parties. . Appellants were made parties in the manner pointed out by the statute. The question here presented is not whether they consented to a jurisdiction which had not attached; for the jurisdiction was of the court, not of the person who presided as judge of the court. It may be conceded that his selection was irregular, and was an error available to any party by objection, and upon appeal, or perhaps by prohibition. The fact remains, however, that Judge Grivins assumed to act as judge of the court under color of authority, and in the belief that his selection was legal. He was not a tortious usurper. He was the de facto judge of the court, inasmuch as he was actually in possession of the office, exercising its functions in that cause, and acting under the color of title. Stokes v. Kirkpatrick, 1 Metc. 138; Rice v. Commonwealth, 3 Bush, 14; Chambers v. Adair, 110 Ky. 942, 62 S. W.
By color of title is meant an apparent right to the office, a pretense under semblance of authority, though the authority is lacking and its pretended exercise void. Henry v. Commonwealth, 126 Ky. 357, 103 S. W. 371, 31 Ky. Law Rep. 760; Scholl v. Bell, 125 Ky. 750, 102 S. W. 248, 31 Ky. Law Rep. 335.
There is a radical and fundamental distinction between a de facto office and a de facto officer. The former cannot exist except in case of revolution, 'a complete overturning of constitutional authority, and the usurpation of all power of government by occupants exercising a force superior to the constitutional authorities. Such was decided in Hildreth v. Mclntire, 1 J. J. Marsh. 206, 19 Am. Dec. 61, where Judge Robertson said, inter alia: “There might be under our Constitution, and there have been de facto officers. But there never was and never can be under the present Constitution a de facto office.”
If the appointing power was validly exercised, the ■officer would he the lawful incumbent. The essential to the creation of an officer de facto is that his incumbency should not be legal, hut that it should he exercised by virtue of some election or appointment attempted as of legal right, hut invalid for want of power in the appointing body, or because of the defect in the election. Here it was believed by the acting parties, their counsel, the clerk of the court, and the judge selected, that the parties could, by their agreement, invest him with the prerogatives of the office. He was, under that belief, appointed, accepted the appointment in good faith, and acted as judge under it. Rights of third parties have been acquired under that proceeding — that of appellee
The proceeding to establish a ditch was one to create a tax liability upon a particular territory. All who owned real property that would be benefited by the improvement, and lying within its zone, are liable to the payment of the tax that might be assessed against each of them. In this instance the regular county judge, Judge Hart, owned property within the territory to be assessed. He did not make defense to, nor did he petition for, the improvement. He was a necessary party to the proceeding, if his property was to be taxed for the establishment of' the ditch. The proceeding is quasi judicial. Many of its features are ministerial only. Some of them are in a sense legislative. The county judge is ex officio a member and president of the fiscal court that lays the county levy tax, and incurs obligations to be met out of the public revenues. He appoints supervisors of the tax books, who may raise or lower the assessment of his property. In all these and in other similar matters he acts officially where his personal interests are involved, and are affected by his action. Courts are frequently called on to pass upon the validity of tax levies, rates, bond issues, and the like, where the judge is a taxpayer whose interests are affected as are those of other taxpayers of the community. His interest is one in common with that of the public.
Judgment affirmed.