Ex parte State ex rel. Attorney General

| Ala. | Nov 15, 1904

TYSON, J.

This is a petition for a writ of mandamus to the judge of the 8th judicial circuit to require him to restore to the docket of the circuit court of Madison court for trial the case of the State v. Stovall, and to vacate an order made by him striking the indictment from the files of the court.

The action of the judge was predicated upon the theory that the indictment was void because preferred and presented by a grand jury not legally constituted.

It appears from the record that it was preferred by a grand jury organized by Hon. Paul Speake as judge of the sixteenth judicial circuit on the 19th day of February, 1904.

The sixteenth judicial circuit and the office of the judge thereof was created bv the Act of the General Assembly, approved October 12, 1903 (General Acts, 1903, p. 566)-known as the Lusk bill, which Act was in the case of Board of Revenue of Jefferson Co. v. Crow, 37 So. Rep. 469, declared by this court to be unconstitutional.

Confessedly there never existed a sixteenth judicial circuit or the office of the judge thereof; so, then, the question presented is, whether the Hon. Paul Speake was a de facto judge of the circuit court of the State. He was commissioned by the Governor and attempted to exercise the duties of the office of circuit judge, it is true, under an unconstitutional Act and a void appointment, but independent of the Lusk Act there existed the office of circuit judge of the 8th judicial circuit and a circuit court in and for the county of Madison. He was not, it is true, legally judge of that circuit or judge of any other circuit. Had he been he Avould haAre been a de ywre-'judge and, of course, the question here presented could never have arisen. We have here then a legally existing office of circuit-judge and the duties of that office exercised by a person under the provisions of a statute that is unconstitutional, at a timé and place when the court could be legally held.

Where this is the case, the authorities seem to he practically unanimous in holding that such a person is a de facto officer and that his acts are valid in so far as they concern the public or third persons who have an interest in the things done until his title to the office is adjudged insufficient.- — 8 Am. & Eng. Enc. Law (2d ed.) pp. 793, 815, 816 and note 1; also p. 818. See also Walker v. State, in MSS., and cases there cited. In other words, the acts of a dp facto officer are as effectual when they concern the rights of. third persons or the public, as if they Avere the acts of a de jure officer. See note on page 148, 42 Am. Dec.

As said by the Supreme Court of the United States in Norton v. Shelby County, (118 U. S. Rep. 441) ; “The doctrine which gives validity to acts of officers de facto whatever defects there- may be in the legality of their appointment or election, is founded upon considerations of policy and-necessity, for the protection of the public and individuals Avhose interests may be affected thereby. Officers are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed Avith the evidence of such offices- and in apparent possession of their powers and functions. For the good order.and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law tbeir title is investigated and determined. It is manifest that endless confusion would result if in every proceeding before such officers tbeir title could be called in question.

In Plymouth v. Painter, 44 Am. Dec. 579, this doctrine is thus stated: “The principle established by these cases, in regard to the proceedings of officers cle facto, acting under color of title, is one founded in policy and convenience; is most salutory in its operation; and is, indeed, necessary for the protection of the rights, of individuals, and the security of the public peace. The rights of no person claiming a title or interest under or through the proceedings of officers having an apparent authority to act, would be safe, if he Avere obliged to examine the legality of the title of such office up to its original source, and the title or interest of such person were held to be invalid, by some accidental defect or flaw in the appointment, election or qualification of such officer, or in the rights of those from whom his appointment or election emanated; nor could the supremacy of the laws be maintained, or their execution enforced, if the acts of officers having a colorable, but not a legal title, were to be deemed invalid.”

It follows that the indictment is valid and that the order of the judge Avith respect to it Avas erroneous.

The writ of mandamus will be aAvarded as prayed for.

McClellan, O. J., Haralson, Dowdell, Simpson, Anderson and Denson, J.J., concurring.