Sheehan's Case
The petitioner, not denying the jurisdiction of the Police Court of Lynn, rests his claim to be discharged upon the disqualification of Mr. Hawkes, (who, as a special justice of that court, passed the sentence and ordered the commitment,) by reason of the eighth article of amendment of the Constitution, which declares that no judge of any court of this Commonwealth (except the Court of Sessions) shall at the same time have a seat in the Senate or House of Representatives.
But if Mr. Hawkes, upon taking his seat in the House of Representatives, ceased to be a justice de jure, he was, by color of the commission which he still assumed to hold and act under, having the usual signs of judicial office — sitting in the court, using its seal, and attended by its clerk—and no other person having been appointed in his stead, a justice de facto. Upon well settled principles, it would be inconsistent with the convenience and security of the public, and with a due regard to the rights of one acting in an official capacity under the color of, and a belief in, lawful authority to do so, that the validity of his acts as a justice should be disputed, or the legal effect of his election and qualification as a representative be determined, in this proceeding to which he is not a party. The appropriate form of trying his right to exercise the office of a justice is by information in behalf of the Commonwealth, or perhaps by action against him by the person injured. Fowler v. Bebee,
The rule extends to all offices, executive or judicial, and applies alike to questions of the validity of the original election or appointment, and to questions whether the commission or authority has expired by its own limitation or by the acceptanca of an incompatible office. Of the great number of cases in the books, it will be sufficient to cite some of those most nearly resembling the ease before us.
Judicial acts done in a court baron by a steward not duly ap pointed, or by an under-steward who kept court as steward with
In Milward v. Thatcher, 2 T. R. 81, 87, Mr. Justice Duller, speaking of early cases in which writs of error were unsuccessfully brought to reverse judgments, by the records of which the same persons appeared to have acted as judges and as bailiffs, said: “In such cases, the question whether they be properly judges or not can never be determined; it is sufficient if they be judges defacto.” See also Andrews v. Linton, 2 Ld. Raym. 884, 885; Clark v. Commonwealth, 29 Penn. St. 129.
In Cocke v. Halsey,
The Constitution of the State of Vermont declares that no person, holding any office of profit or trust under the authority of Congress, shall “ be eligible to any appointment in the Legislature, or of holding any executive or judiciary office under this State.” In McGregor v. Balch,
In Commonwealth v. Kirby, the defendant, being indicted for assaulting and obstructing a constable in the execution of his office, introduced evidence that the only authority of the constable was a warrant issued by a person who, after having been appointed and qualified as a justice of the peace, had been duly appointed and qualified as a constable, and held this office when he, as justice, issued the warrant in question. This court, while expressing the opinion that the acceptance of the office of constable did not, by the Constitution of Massachusetts, disqualify him to act as a justice of the peace, further declared that if this were more doubtful, and if, in an action instituted against a justice of the peace for issuing his warrant without authority, this ground of the incompatibility of the two offices would avail, yet that, holding a commission as justice of the peace, and having been legally qualified to act as such, and continuing to act in that capacity, with full powers, unless for the objection now taken, he would, as against third persons, be considered as a justice of the peace de facto, and his warrant would justify the officer to whom it was directed in making service of the same.
In Fitchburg Railroad v. Grand Junction Railroad, which was an action to recover a portion of the expense of building a bridge at a junction of the tracks of several railroad corporations, according to the award of a commissioner appointed by the Governor upon the application of the plaintiff, under a statute for the purpose, it was held that it was not open to the defendant to show that the appointment was in violation of the Constitution of the Commonwealth for the reason that the commissioner held at the same time two other offices.
The case of this petitioner being within the jurisdiction of the Police Court, the warrant of commitment, under the seal of the court, and signed by its clerk, was a complete justification of the jailer to whom it was addressed. When the court has jurisdiction of the case and of the party, and the warrant is sufficient
Prisoner remanded.