Laver v. McGlachlin

28 Wis. 364 | Wis. | 1871

Cole, J.

The sole question in tbis case is, whether the writ of replevin issued by Charles H. Woodard afforded protection to the defendant, a deputy sheriff who executed it. It is claimed by the plaintiff that it did not, because it is said that Woodard was not a justice, either de jure or de facto.

It appears that Woodard was appointed as a justice of the peace by the president and trustees of the village of Sheboy-gan Falls, to fill a vacancy caused by the resignation of one Noyes — who had been theretofore duly elected to the office — and that he was acting as justice by virtue of this appointment, when he issued the writ. And it is claimed that, so far as the public and third persons are concerned, he was a de facto officer, and that his official acts are valid. It seems to us that this position is fully sustained by the decisions of this court in the Case of Boyle, 9 Wis., 264, and that of the State v. Bloom, 17 id., 521. The latter case is precisely in point. In that case a party was indicted for a crime, tried, convicted and sentenced at a term of the circuit court for Jackson county, held by 'Isaac E. Messmore. This court held that the sentence was good and valid, notwithstanding the fact that Messmore exercised the office of circuit judge under the appointment of the governor, who had no authority whatever to make the appointment. See State v. Messmore, 14 Wis., 163. And yet, although the governor had no authority to appoint, the appointment was held to give color of title, and to constitute the person acting under it an officer de facto. In every element and principle the case of Bloom is strictly analogous to the one before us. For, assuming that the president and trustees of the village of Sheboygan Falls had no legal authority to appoint a justice, yet they assumed the right to make the appointment under their charter and amendments thereto (cbap. 280, P. & L. Laws of 1854; cbap. 212, P. & L. Laws of 1858; cbap. 209, P. & L. Laws of 1862; and cbap. 494, Glen. Laws of 1865); and Woodard, it seems, in good faitb assumed tbe duties of tbe office, and filed bis oatb and tbe bond required by law. It is apparent tbat it was not tbe case of a bold, naked assumption of an office by Woodard, without color' of title or pretense of right. He doubtless supposed tbat be was a justice dejure as well as die facto; and though there may have been a defect in bis title, yet we think bis acts must be held legal and effectual to protect tbe defendant. No precise rule of a general nature can be extracted from tbe cases as to what constitutes an officer de facto; for each case necessarily depends in some degree upon its peculiar circumstances. Nor are tbe authorities entirely in harmony upon tbe subject. But we are disposed to adhere to our own decisions; and tbe case of Bloom is decisive of tbe question before us. According to tbe principles of tbat decision, Woodard was a justice defacto, acting under color of title, and bis official acts are valid so far as tbe public and third persons are concerned.

By the Court. — -The judgment of tbe circuit court is reversed, and tbe cause remanded for further proceedings according to law.