delivered the opinion of the court.
This is an action upon twenty-nine bonds, of $1000 each, alleged to be the bonds of Shelby County, Tennessee, issued on the 1st of March, 1869, and payable on the 1st of January, 1873, with interest from January 1, 1869, at six per cent, per annum, payable annually on thé surrender of matured interest coupons attached; and three coupons of $60 each. The following is a copy of one of the bonds and of a coupon :
Shelby County Railroad Bond No. 176.
[Seal County Court of Shelby County, Tenn.]
Barbour Lewis,
President of the Board of County Commissioners of Shelby County.
Jno. Loague,
Clerk of County Court of Shelby County
“ $60 State of Tennessee, $60
Shelby County.
Coupon No.-of Bond No. 264.
The trustee of Shelby County will pay to the bearer sixty dollars in the city of Memphis on the 1st day of January, 1875, being interest due on bond No. 264, for $1000, of bonds issued to Mississippi River Railroad- Company.
[Seal County Court of Shelby County, Tenn.]
(Signed) ' John Loague,
Clerk of Shelby County Cov/rtP
The plaintiff contends— -
1st. That the commissioners, by whose directions the bonds were'issued, and whose president signed them, were lawful officers of Shelby County, and authorized under the acts mentioned in the heading of the bonds, to represent and bind the county by the subscription to the railroad company, and that the bonds issued were, therefore, its legal obligations.
2d. That if the commissioners were not officers de jxire of the county, they were officers de facto, and, as such, their action in making the subscriptitín and issuing the bonds is equally binding upon the county; and
3d. That the action of the commissioners, whatever their want of authority, has been ratified by the county.
The defendant contends—
1st. That the commissioners were not lawful officers of tbe county, and that there was no- such office in Tennessee as that of county commissioner.
2d. That there could not be any such'
de facto
officers, as
3d. That the action of the commissioners was never ratified, and was incapable of ratification by the county.
Upon the first question presented, that which relates to the lawful existence and authority of the county commissioners, we are relieved from the necessity of passing. That has been authoritatively determined by the Supreme Court of Tennessee, and is not open for consideration by us.
From an early period in the history of the State — indeed, from a period anterior to the adoption of her constitution of 1796 —to the passage of the act of March 9,1867, the administration of the government in local matters in each county was lodged in a county court, or quarterly court as it was sometimes called, composed of justices of the peace, elected in its different districts. . The constitution of 1796 recognizes that court as an existing tribunal, and the constitution of 1834 prescribes the duties of the justices of the peace composing it. This county court alone had the power to make a county subscription to the Mississippi River Railroad Company, to issue bonds for the amount, and to levy taxes for its payment, unlеss the act of March 9, 1867, invested the board of commissioners with-that authority. Statutes of 1867, ch. 48, § 6. That act created the board, and provided that it should consist of five persons, residents of the county for not less than two years, each to serve for the period of five years and until his successor should be elected and qualified. The 25th section vested in it all the powers and duties then possessed by the quarterly court of the county, and in addition thereto the authority “ to subscribe stock in railroads which the county court of Shelby County has been authorized by general and special law to subscribe, and under the same conditions and restrictions, and to represent such stock in all elections for directors, and provide for payment of subscriptions as made.”
The validity of this act superseding the county court was at once assailed as in violation of the constitution of the State. Within a month аfter its passage William Walker and other
This decision was made in February, 1871. In June following the case mentioned above of the State at the relation of Walker and others against the Commissioners of Shelby County was decided in conformity with it, the Supreme Court holding that at the time the bill was filed the justices were entitled to the relief prayed, and that the decree dismissing the bill was erroneous, and it so adjudged and decreed. But it said that as the act under which the bill alleged that the defendants had usurped office had since then been repealed, and that they had not afterwards assumed to exercise the powers and perform the duties named in the act, it was only necessary, in addition to what was decreed above, to dispose of the costs; and that disposition was made by taxing them against the defendants and awarding execution therefor.
In the same month the Supreme Court decided the case of Butterworih against Shelby County, which also involved a consideration of the validity of the act creating the board of commissioners of that county.
*
The action was upon county warrants issued by the board and signed by Barbour Lewis as its president, as the bonds in this suit are signed. The court held that the act creating the board was unconstitutional, that the board was an illegal body, and that, as a necessary consequence, the warrants of the county were invalid. Judgment was accordingly rendered for the defendant. Chief Justice Nichоlson, in delivering the opinion of the court, referred to
Counsel for the plaintiff have endeavored to show that the adjudication in these cases has been questioned by later decisions, and therefore should have no controlling force in this litigation. A careful examination of those decisions fails to support this position. The opinion that the act was invalid because it was special legislation applicable only to certain counties would seem indeed to be thus modified. But the adjudication that the constitution did not permit the appointment of commissioners to take the place of the justices of the peace for the county, and perform the duties of the county court, stands unimpaired, and as such is binding upon us. Two of the cases, as we have seen, were brought against the commissioners, in one case, of Shelby County, and in the other, of White County, to test the validity of the acts under which they were appointed, or about to be appointed, and their right to assume and exercise the functions and powers of the justices of the peace, and hold the county court in their place. From the nature of the questions presented we cannot review or ignore this determination. Upon the construction of the constitution and laws of a State, this court, as a general rule, follows the'decisions .of her highest court, unless they conflict with or impair the efficacy of some principle of the Federal Constitution, or of a Federal statute, or a rule of commercial or general law. In these cases no principle of the Federal Constitution, or of any Federal law, is invaded, and no rule of general or commercial law is disregarded. The determination made relates to the existence
On many subjects the decisions of the courts of a State are merely advisory, to be followed or disregarded, according as they contain true or erroneous expositions of the law, as those of a foreign tribunal are treated. But on many subjects they must necessarily be conclusive ; such as relate to the existence of her subordinate tribunals; the eligibility and election or appointment of their officers ; and the passage of her laws. No Federal court should refuse to accept such decisions as expressing on these subjects the law of the State. If, for instanсe, the Supreme Court of a State should hold that an act appearing on her statute book was never passed and never became a law, the Federal courts could not disregard the decision and declare that it was a law and enforce it as such.
South Ottawa
v. Perkins,
But it is contended that if the act creating the board was void, and the commissioners were not officers de jure, they were nevertheless officers defacto, and that the acts of the board as a defacto court are binding upon the county. This contention is met by the fact that there can be no officer, either de jure or defacto, if there be no office to fill. As the act attempting to create the office of commissioner never became a law, the office never came into existence. Some persons pretended that they held the office, but the law never recognized their pretensions, nor did the Supreme Court of the State. Whenever such pretensions were considered in that court, they were declared to be without any legal foundation, and the commissioners were held to be usurpers.
The doctrine which gives validity to acts of officers defacto, 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 whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with 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 their title is investigated and deter-
In
Hildreth
v.
M'Intire,
1 J. J. Marsh. 206, we have a decision from the Court of Appeals of Kentucky which well illustrates this doctrine. The legislature of that State attempted to abolish the Court of Appeals established by her constitution, and create in its stead a new court. Members of the new court were appointed and undertook to exercise judicial functions. They dismissed an appeal because the record was not filed with the person acting as their clerk. A certificate of the dismissal signed by him was received by the lower court, and entered of record, and execution to carry into effect thе original decree was ordered to issue. To reverse this order an appeal was taken to the constitutional Court of Appeals. The question was whether the cqurt below erred in obeying the mandate of the members of the new court, and its solution depended upon another, whether they were judges of the Court of Appeals and the person acting as their clerk was its clerk. The court said : “ Although they assumed the functions of judges and clerk, and attempted to act as such,
In some respects the case at bar resembles this one from Ken
Numerous cases are cited in which expressions are used which, read apart from the facts of the cases, seemingly give support to the position of counsel. But, when read in connection with the facts, they will be seen to apply only to the invalidity, irregularity, or unconstitutionality of the mode by which the party -was appointed or elected to a lеgally existing office. None of them sanctions the doctrine that there can be a
defacto
office under a constitutional government, and that the acts of the incumbent are entitled to consideration as valid acts of a
de facto
officer. 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 are concerned. It is
The case of
The State
v.
Carroll,
“An officer de facto 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 are exercised :
“ First. 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.
“ 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 therе 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 power, or defect being unknown to the public.
“ Fourth. Under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.”
Of the great-number of cases cited by the Chief Justice none recognizes such a thing as a
defacto
office, or speaks of a person as a
defacto
officer, except when he is the incumbent of a
de jure
office. The fourth head refers not to the unconstitutionality of the act creating the office, but to the unconstitutionality of the act by which the officer is appointed to an office legally existing. That such was the meaning of the Chief Justice is apparent from the cases cited by him in support of the last position, to some of which reference will be made. One of them,
Taylor
v.
Skrine,
3 Brevard, 516, arose in South Carolina in 1815. By an act of that State of 1799, the governor was authorized to appoint and commission some fit and proper person to sit as judge in case any of the judges on the circuit should happen to be sick, or become unable to hold the court in his circuit. A presiding judge of the court was thus appointed by the governor. Subsequently the act was declared to
To
Carleton
v.
The
People,
In
Clark
v. Commonwealth, from the Supreme Court of Pennsylvania, 29 Penn. St. 129, the question related only to the title of the officer. The constitution of that State provided for a division of the State into judicial districts, and for the election of the presiding judge of the county court for each district by the people thereof. The legislature passed a law transferring a county from one judicial district to another during the term for which the judge of the district had been elected, and whilst presiding judge of the district to. which the county was thus transferred he held court, at which a prisoner was con
It is evident, from a consideration of these cases, that the learned Chief Justice, in State v. Carroll, had reference, in his fourth subdivision, as we have said, to the unconstitutionality of acts appointing the officer, and not of acts creating the office. Other cases cited by counsel will show a similar view.
In
Brown
v.
O' Connell,
The case of
Blackburn
v.
The State,
In
Fowler
v.
Beebe,
None of the cases cited militates against the doctrine that, for the existence of a defacto officer, there must be an office de jure, although there may be loose expressions in some of the opinions, not called for by the facts, seemingly against this view. Where no office legally exists, the pretended officer is' merely a usurper, to whose acts no validity can be attached; and such, in our judgment, was the position of the commissioners of Shelby County who undertook to act as the county court, which could- be constitutionally held only by justices of the peace. Their right to discharge the duties of justices of the peace was never recognized by the justices, but from thе outset was resisted by legal proceedings, which terminated in an adjudication that they were usurpers, clothed with no authority or official function.
It remains to consider whether the action of the commissioners in subscribing for stock of the Mississippi River Railroad Company and issuing the bonds, of which those in suit are a part, being originally invalid, was afterwards ratified by the county. The County Court, consisting of the justices of the peace, elected in their respective districts, alone had' power to make a subscription and issue bonds. The sixth section of the act of February 25, 1867, to which the bonds on their face refer, provides: “ That the County Court of any county through which the line of the Mississippi River Railroad is proposed to run, a majority of the justices in commission at the time concurring, may make a corporate or county subscription to the capital stock of said railroad compаny, of an amount not exceeding two-thirds the estimated cost of grading the road-bed through the county and preparing the same for the iron rails; the said cost to be verified by the sworn statement of the president or chief engineer of said company. And after such subscription shall have been entered upon the books of the railroad company, either by the chairman of the county court, or by any other member of the court appointed therefor, the court shall proceed, without further reference or delay, to levy an
On the 5th of the following November the legislature passed an act declaring: “That the subscription authorized in said sixth section to be made to the capital stock of the Mississippi River Railroad Company, by the counties along the line of said railroad, may be made at any monthly term of the county courts of said counties, or at any special term of said courts: Pro vided,, 'that a majority of all the justices in commission in the counties respectively shall be present when any such subscription is made; and provided further, that a majority of those present shall concur therein.” Private Acts, 1867-1868, ch. 6, § 1, page 5.
Neither of these acts, as counsel observe, recognizes or in any way refers to the county commissioners, though the last act was passed eight months aftеr the act creating the board of commissioners for Shelby County. Both provide that the subscription may be made by the county court, but upon the condition that a majority of all the justices in commission shall be present and a majority of those present shall concur therein.
The county court met on the 15th of November, 1869, for the first time after the passage of the act of March 9,1867, and assumed its legitimate functions as the governing agency of the county. On the 11th of April, 1870, it again met and established the rate of taxation for the Mississippi River Railroad bonds at twenty cents on each one hundred dollars’ worth of taxable property. At its meeting on the 16th of that month it ordered that the tax for those bonds should be ten cents on each one hundred dollars’ worth of property. At the meeting on the 11th there were twenty two justices of the peace present, of whom eighteen voted for the tax levy, and on the 16th only
By this provision of the constitution the county court, as thus seen, was shorn of any power to оrder a subscription to stock of any railroad company without the previous assent of three-fourths of the voters of the county cast at an election held by its qualified voters, and, of course, it could not afterwards, without such assent, give validity to a subscription previously made by the commissioners: It could not ratify the acts of an unau-
thorized body. To ratify is to give validity to the act of another, and implies that the person or body ratifying has at the time power to do the act ratified. As we said in
Marsh
v.
Fulton County,
.No election was held by the voters of Shelby County with reference to the subscription for stock of the Mississippi River Railroad Company after the new constitution went into effect. No subsequent proceedings, resolutions, or expressions of approval of the county court with reference to the subscription made by the county commissioners, or to the bonds issued by them, could supersede the necessity of such an election. Without this sanction the county court could, in no manner, ratify the unauthorized act, nor could it accomplish that result by acts which would estop it from asserting that no such election was had. The-requirement of the law could not, in this indirect way, be evaded.
The case of
Aspinwall
v.
Commissioners of Daviess County,
It follows that nо ratification of the subscription to the Mississippi River Railroad Company, or of the bonds issued for its payment, could be made by the county court subsequently to the new constitution of Tennessee, without the previous assent of three-fourths of the voters of the county, which has never been given.
It is unnecessary to pursue this subject further. We are satisfied that none of the positions taken by the plaintiff can be sustained. The original invalidity of the acts of the commissioners has never been subsequently cured. It may be, as alleged, that the stock of the railroad company, for which they subscribed, is still held by the county. If so, the county may, by proper proceedings, be required to surrender it to the company, or to pay its value; for, independently of all restrictions upon municipal corporations, there is a rule of justice that must control them as it controls individuals. If they obtain the property of others without right, they must return it to the true owners, or pay for its value. But questions of that nature do not arise in this case. Here it is simply a question as to the validity of the bonds in suit, and as that cannot be sustained, the judgment below must be
Affirmed.
Notes
This case does not appear to be reported. A copy oi the opinion was furnished the court by counsel.