83 Mass. 552 | Mass. | 1861
We do not deem it necessary to the decision of the question raised in this case to determine whether the resignation by the commissioner of his seat in the senate was lawful and valid, and duly vacated his place as a member of that body; nor whether there was a constitutional incompatibility which would prevent him from lawfully holding his two appointments as commissioner, under Sts. 1855, c. 230, and 1856, c. 296, at the same time that he was entitled to claim his rights and perform his duties as a senator. These are interesting and important questions, but they are immaterial to the matter in issue between the parties to this suit.
The commissioner, under whose direction and control the work authorized by St. 1856, c. 296 was done, acted under an appointment made in pursuance of § 8 of that statute, by the governor and council. He was not therefore a mere usurper of or intruder into a public office. He acted under a commission prima facie valid, and issued by an authority apparently empowered to invest him with the legal rights and powers of the office to which he was appointed. If there was any illegality or incompatibility which would incapacitate him from holding the office, it arose from extrinsic facts which did not appear on the face of the commission under which he acted In supervising the work for which reimbursement is sought in this action. He was therefore clearly an officer de facto. The precise definition of an officer de facto is, one who comes in by the forms of law, and acts under a commission or election apparently valid, but, in consequence of some illegality, incapacity or want of qualification, is incapable of lawfully holding the office. The exact distinction between an usurper or intruder and an officer de facto is this : the former has no color of title to the office; the latter has. by virtue of some appointment or election. It follows that the acts of the commissioner cannot be called in question in this suit. They are valid as respects third persons, and cannot be impeached in a collateral way in proceedings to which the officer is not a party. This principle has often been recognized and applied by this court, and quite recently in Coolidge v. Brigham, ante, 333. It is difficult to find a stronger illustration