163 Wis. 34 | Wis. | 1916
The relator challenges the validity of his commitment to the asylum on the ground that Judge Chab-boueNe was neither a de jure nor a de facto judge of the county court, and could not be either while purporting to act as judge of the superior court; that he was a mere intruder, and his acts were therefore void and subject to collateral attack. To sustain this position the following cases from our own court are cited: Van Slyke v. Trempealeau Co. F. M. F. Ins. Co. 39 Wis. 390; Fenelon v. Butts, 49 Wis. 342, 5 N. W. 784; Kempster v. Milwaukee, 97 Wis. 343, 72 N. W. 743. Before calling specific attention to these cases it is
“A person may be a de facto officer and have no real title at all to the place he assumes to have the right to. If one is in possession of an office, performing its duties, and entered by right or such claim of right as not to be classible as a usurper, or have been in undisturbed possession so long as to be equivalent to an entry under .claim of right, and still claims in good faith to be entitled to the office, and all sur*38 roundings afford an appearance of de jure official status, — be is, as a general rule, de facto wbat be claims to be. Wbat gives bim that status is color of authority, — color of title is not essential, strictly speaking.”
The authorities supporting this definition of a de facto officer are collected in the Ehern Case and need not be repeated here. In Norton v. Shelby Co. 118 U. S. 425, 444, 6 Sup. Ct. 1121, the court uses this language:
“Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts is concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions.”
The reason for the rule that acts done by a de facto officer in a de jure office are valid'rests upon grounds of public policy. If the contrary were held, official acts of the gravest character would have to be declared void by reason of a defect in the title of the incumbent to the office. Property and per-, sonal rights would be subject to constant hazards, arising not out of any infirmity in the procedure settling them, but out of a defect in the title of the official exercising the functions of the office — a defect not in any way logically connected with the proper exercise of the assumed functions. Hence, given a de jure office and a de facto incumbent thereof, there is a valid exercise of the powers'of the office.
The fact that Judge ChadboubNb acted under the name of judge of the superior court instead of judge of the county court is immaterial. His so acting was under the color of a right conferred by the void acts creating the superior court. Under such, color of right he assumed to, and did in fact, exercise all the powers and functions of the county court. That he did not assume the name of the office is due to the fact that he supposed the jurisdiction of the county court was transferred to the superior court and that he was authorized to transact the business of the former court under the title of the latter. There never was any doubt in the minds of either
That there was in existence a de jure officer of the county court at the time Judge OiiadbotiRUe was de facto judge thereof does not affect the validity of his acts as a de facto judge, he having ousted the de jure judge and exercised the functions of the office. In re Boyle, 9 Wis. 264; State v. Bloom, 17 Wis. 521; Laver v. McGlachlin, 28 Wis. 364.
If we analyze the cases in this state referred to as more particularly relied upon by the relator, we find that Van Slyke v. Trempealeau Co. F. M. F. Ins. Co. 39 Wis. 390, was a case where under a statute declared to be unconstitutional it was provided that instead of a change of venue upon a disqualification of the circuit judge the parties might stipulate to try the case before a member of the bar of the supreme court, and the validity of a judgment of an attorney so chosen came into question. The court held it void on the ground that there was no de jure office which the attorney acting as judge attempted to fill. He did not claim to act as a circuit judge nor attempt to oust him from office. The judgment was therefore coram non judice. In Fenelon v. Butts, 49 Wis. 342, 5 N. W. 184, it was held that a court commissioner could not lawfully he appointed to exercise jurisdiction in two counties; that a person so appointed was not appointed to any office known to the law and hence could not be a de facto officer of any lawful office, and his acts were void. In
In Van Slyke v. Trempealeau Co. F. M. F. Ins. Co. 39 Wis. 390, 396, the court through Ryan, G. J., quotes approvingly this language from In re Boyle, 9 Wis. 264:
“Every person assuming to exercise the authority of an officer, does not thereby make himself an officer de facto.*41 But when it appears that the person exercising the powers of an office, is in by such a color of right, and that he has such possession of the office, as makes him an officer de facto, then his acts as to third persons are valid, and his right to hold the office can only he inquired into in some direct proceeding for that purpose.”
The cases of In re Boyle, 9 Wis. 264; State v. Bloom, 17 Wis. 521; and Laver v. McGlachlin, 28 Wis. 364, were distinguished from the case then under consideration on the ground that in the cases mentioned the judge held the office under color of title. So in the present case Judge Ciiad-bouene held under color of title, had complete possession of the office, room, records, and papers of the county court, an existing de jure office, and exercised in full the powers and duties thereof. Eor that reason he was a de facto judge of a de jure court and his acts are valid as to third persons.
By the Gourt. — The writ of habeas corpus is quashed.