Petersilea v. Stone, 119 Mass. 465

Devens, J.

If Farr was an officer defacto, thе validity of the service by him of the notice to take the poor debtor’s oath cannot be inquired into collaterally. Coolidge v. Brigham, 1 Allen, 333. In order to show that he was not, the plaintiff relies upоn the statement of Bigelow, C. J., in Fitchburg Railroad v. Grand Junction Railroad, 1 Allen, 552, 557, that “ 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.” If this were intended as a general definition оf an officer defacto, it would be incomplete, but the inquiry there presented to the court was аs to the validity of certain acts done by one who acted under a commission primd 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, ‍‌​‌​​‌‌​​‌​‌‌​‌‌​‌‌‌​​​​​​​‌​​​‌‌‌‌​‌‌​‌‌‌‌‌‌‌‌​‍and it is to be limited to the case then bеfore the court. The reason of public policy, upon which it is held that the acts of an officer de facto are not to be called in question collaterally, but are valid as tо third persons, may apply even to the case where such officer is a usurper аnd intruder. This principle has been applied in England to the most important office; after Edward IV. obtained the crown, the kings of the line of Lancaster, who had preceded him, wеre spoken of as “ nuper de facto et non de jure reges Anglice, but although Henry VI. had been declared a usurper by act of Parliаment, attempts aga'nst his authority (not having been in aid of the rightful king) were cap« itally punished. 1 Bl. Com. 204. 4 Bl. Com. 77. Third persons, from the nature of the case, cannot always investigate the right of оne assuming to hold an important office, even so far as to see that he has cоlor of title to it by virtue of some ‍‌​‌​​‌‌​​‌​‌‌​‌‌​‌‌‌​​​​​​​‌​​​‌‌‌‌​‌‌​‌‌‌‌‌‌‌‌​‍appointment or election. If they see him publicly еxercising its authority, if they ascertain that this is generally acquiesced in, they are entitled to treat him as such officer, and, if they employ him as such, should not be subjected to the danger of having his acts collaterally called in question. Brown v. Lunt, 37 Maine, 423. State v. Carroll, 38 Conn. 449. If the party thus recognizing the officer de facto were aware that such officer had some appointment or election, it would strengthen his belief, but without this he would be justified in believing that an authority publicly exercised and assented to was rightfully assumed. Wilcox v. Smith, 5 Wend. 231. The definition of an officer de facto, as given by Lord Ellenborough, in The King v. Bedford Level, 6 East, 356, which he generalizes from that of Lord Holt, in Parker v. Kett, 1 Ld. Raym. 658, 660, is “ one who has the reputation of being the officer he assumes to be, and yet is not a good ‍‌​‌​​‌‌​​‌​‌‌​‌‌​‌‌‌​​​​​​​‌​​​‌‌‌‌​‌‌​‌‌‌‌‌‌‌‌​‍officer in point of law,” and the above suggestions are in accordance with this definition. In the opinion in People v. Collins, 7 Johns. 549, relied on by the plaintiff, it is hеld that the commissioners, whose acts were there in question, were officers de facto, as they came into their office by color of title; and it is added that “ it is a well settled principle of law that the acts of such persons are valid when they concern the public, or the rights of third persons who have an interest in the act done.”

The principle, upon which the acts of officers defacto have been hеld valid, has sometimes been extended, so far as to protect them, under certain сircumstances, when they have been directly proceeded against. The question thеn presented is not the same as that where the rights of third persons only are involved, and ‍‌​‌​​‌‌​​‌​‌‌​‌‌​‌‌‌​​​​​​​‌​​​‌‌‌‌​‌‌​‌‌‌‌‌‌‌‌​‍in suсh cases it would not be sufficient that they had publicly exercised such office, but they might properly be called upon to show they did so by virtue of some appointment or elеction, which they had a right to believe valid, even if it were otherwise. State v Carroll, ubi supra.

It was shown in the presеnt case that Farr was “ notoriously acting” as constable, having an office in Boston, and upon its door his name with the addition of the word “ constable ; ” and as to third persons he must bе deemed an officer de facto.

Were it necessary in order to maintain his proceeding tо show that he had color of title by some appointment or election, it would not рerhaps be difficult to do so. Farr had originally a proper appointment, and еven if he, who wrongfully holds over after the term for which he is appointed has expired, аnd this is known to him, cannot be said to hold by color of title, there are many cases wherе this expiration cannot be clearly ascertained. He who thus continues to hold his оffice erroneously but under a claim of right honestly and reasonably made has colоr of title from his original appointment or election. Crew v. Vernon, Cro. Car. 97. These considerations have rendered it unnecessary to determine whether Farr was an officer de jure.

Judgment affirmed.

Case Details

Case Name: Petersilea v. Stone

Court Name: Massachusetts Supreme Judicial Court

Date Published: Jan 11, 1876

Citations: 119 Mass. 465; 1876 Mass. LEXIS 57

Court Abbreviation: Mass.