Heard v. Elliott

116 Tenn. 150 | Tenn. | 1905

Mr. Justice Neil,

after making the foregoing statement of facts, delivered the opinion of the Court.

We are of opinion that the court of chancery appeals acted correctly in affirming the decree of the chancellor. The long possession by Thurman of the books and papers of the office and the performance of the duties thereof with the acquiescence of the public, prior and up to the time when defendant’s entry was made, constituted him .an entry taker de facto; that is, if such an office was then in existence, a question which we shall presently consider. We adopt as correct the following definition made by Chief Justice Butler in State v. Carroll, 38 Conn., 449, 9 Am. Rep., 409:

“An officer de faoto 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 the office were exercised, first, without a known appointment or election, but under such circumstances of reputation or acquiescence as was calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to he the officer he assumed to he; second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like; third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of poAver, 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.”

We have several decisions in this State bearing upon one or more of the points contained in the foregoing definition. They are State v. Hart, 106 Tenn., 269, 61 S. W., 780; Mayor v. Thompson, 12 Lea, 844; Brewer v. State, 6 Lea, 198; Cheek v. Bank, 9 Heisk., 489; McLean v. State, 8 Heisk., 249, 250; Douglas v. Neil, 7 Heisk., 437; Kelley v. Story, 6 Heisk., 202; Calloway v. Sturm, 1 Heisk., 764; Turney v. Dibrell, 3 Baxt., 235; Ward v. State, 2 Cold., 605, 91 Am. Dec., 270; Blackburn v. State, 3 Head, 690; Venable v. Curd, 2 Head, 582; Moore v. State, 5 Sneed, 510; Pearce v. Hawkins, 2 Swan, 87, 57 Am. Dec., 54; Bates v. Dyer, 9 Humph., 162; Bank v. Chester, 6 Humph., 458, 44 Am. Dec., 318.

The special portion of the definition above quoted which is applicable to the present case is the first specification; that is, where one acts “without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be.”

The facts above stated show the required circumstances of reputation and acquiescénce. Although there was no actual color of office, in any form of appointment or election, still the long exercise of "the duties of the office and the acquiescence by the public would, as said in Wilcox v. Smith, 5 Wend. (N. Y.), 231, 21 Am. Dec., 213, “afford a strong presumption of at least a colorable election or appointment.” See, also, Mallett v. Uncle Sam’s Coal, etc., Mining Co., 1 Nev., 188, 90 Am. Dec., 484, and Cary v. State, 76 Ala., 78. None of our cases cited above bear upon this special phase of the question. In all of them there was some, form of election or appointment or holding over, to constitute color of office. As stated, however, we are of opinion that this is not essential, but that the long holding one’s self out as entitled to the office and performing its duties and the general acquiescence of the public would be sufficient to constitute the person so acting, as to third persons, an officer de facto, and make his acts as such officer valid, since it appears from such a state of facts that the person so claiming and acting is an officer in the estimation of the public resorting to him for official acts and relying upon him.

We are not to be understood as intimating that the acts of a mere usurper are valid, but, as said by the supreme court of Oregon: “The color of right which constitutes one an officer de facto may consist in an election or appointment, or in the holding over after the expiration of one’s term, or acquiescence by the public in the acts of such officer for such length of time as to raise the presumption of colorable right by election or appointment.” Hamlin v. Kassafer, 15 Or., 456, 15 Pac., 778, 3 Am. St. Rep., 176. As said by the supreme court of North Carolina: “A mere intruder or usurper is not ordinarily, but may become, an officer de facto in some cases . . . but when, without color of authority, he simply assumes to act, to exercise authority as an officer, and, the public knowing that, or reasonably ought to know that, he is a .usurper, his acts are absolutely void for all purposes.” Van Amringe v. Taylor, 108 N. C., 196, 12 S. E., 1005, 12 L. R. A., 202, 23 Am. St. Rep., 51. The distinction is found in the length of time during which the person has acted as an officer, and during which the public have acquiesced in his claim and acts. In the present case the time which had elapsed before the defendant’s entry was made, during which the public had recognized Mr. Thurman as entry taker of the county and acquiesced in his acts as such, was sufficient to make him an entry taker de facto and his acts good as to third persons.

We think the conclusion above reached is reinforced-by the fact that under the act of 1870 the office of entry taker and county surveyor had been consolidated, and under the act of 1879 the county court was authorized to devolve the duties of entry taker upon the county surveyor. The public were thus accustomed to associate the office of entry taker with that of county surveyor. This is a very material consideration, since it appears that in 1881 Thurman was really elected county surveyor. It was natural that the public should thereafter associate the office of entry taker with his. office of county surveyor, and that it would seem very reasonable-to them that he should immediately claim to be entry taker and act as such. Under these circumstances it is not probable that any one would take the trouble to investigate the records to see whether the latter office had really been imposed upon the holder of the former.

We shall now recur to the question which we postponed a few moments ago. Did the act of 1879 create the office of entry taker for all of the counties of the State, or was there no such office until an actual election by the county court?

We are of the opinion that under a true construction of the act referred to the office of entry taker was revived all over the State, and until there should be an election by the county court it remained as any other unfilled county office. The caption designates the act as one to establishh the entry taker’s office. It had been previously abolished by the act of 1875. The purpose was to restore the office. We do not think this general purpose indicated by the title is overcome by the expression in the body of the act concerning a “desire” which any county may entertain to have an entry taker, or by the use of the expression “if it revives the office,” etc. The substance of the matter was that the office was created for the whole State, but it was left optional with each county whether it would fill the office or not by an election.

The entry taker’s office was therefore a legal one in in Sequatchie county, and hence one as to which, other conditions concurring, there might be a de facto incumbent.

There is one other question in the case, which was given great prominence in the opinion of the court of chancery appeals, and has been much debated by counsel, and Ave therefore notice it. •

The court of chancery appeals found that, although the minutes of the county court for the year 1881 did not shoAV that Thurman had been elected entry taker, yet as a matter of fact be was elected entry taker by the justices of the county court. This conclusion was based on oral evidence taken as to what transpired in the county court during the terms of that year concerning this matter. This evidence was objected to by the complainant, on the ground that it was not competent to prove by oral evidence the official acts of the county court; that the minutes were the only evidence of the determinations reached by that body. This objection was overruled by the court of chancery appeals. We think that court acted erroneously in so doing. The subject is fully considered by tbis court in an opinion delivered at the present term by Mr. Justice Shields in the case of State, ex rel., v. True et al., 116 Tenn., 294, 92 S. W., 294, and we refer to that case, without further elaboration.

In reaching the decision which we have announced on the merits of the case, we have excluded the finding which we have just referred to. It does not appear in the statement which precedes this opinion.

However, on the grounds previously set out, we ratify the conclusion reached by the court of chancery appeals, and affirm its decree.