74 Ga. 416 | Ga. | 1885
Lead Opinion
The legal question which this record makes is, whether a deed of -assignment is void because the affidavit thereto was made before a commercial notary public a few days after the expiration of his term of office, and before the renewal of his appointment; and that question turns on this, was he then a de facto officer, and if not, then, under our statute, is he de jure an officer ? And that turns upon this, is the commercial notary a public officer ?
So that it seems clear that they are public officers, whose
It is said that, because the number of these commercial notaries is not fixed by law, therefore they are not defacto officers when holding over, because they have no successors.
It strikes us that the argument is nothing else than a non sequitur. Whether one or a hundred fill the office, it is still an office. If, at the option of the appointing power, one may be enough or one hundred may be necessary in county or city, the office is still public, and successors are appointed for those who go out. But in the case before us, this notary public was appointed and acted for and at a bank, a necessary officer there, and when it was ascertained that his term of four years had expired, he was reappointed. Suppose another had been appointed and he
The principle on which the whole doctrine of the recognition of defacto officers and their acts rests, is not how-' they happen to act de facto, — whether the cause be an illegal appointment or election, or an illegal holding over, but it is the convenience of the public — the necessity of the.thing — the impossibility of one always knowing when an-officer to whom he goes on business of a ministerial character is legally in office, was properly elected or has held too long; it is that, where the public servant is acting in' the place apparently all right, and the applicant to him-in good faith has a deed witnessed or an oath administered,, that it is better for society that the act defacto stand than-that the business of society, the title to property, be all - wrecked, because parties did not know that the term of' office of the public official expired the day before.
See 53 Mo., 334; 37 Maine, 427; 9 Am. R., 431; Cro. Eliz., 699, 533; 1 Moore, 109; 1 Ld. Raym., 658; 12 Modern, 467, cited by defendant in error. See also 19 Am. D., 63 (n); 4 Iredell, 368; 9 Am. R., 434 (n); 74 Ala., 411; 9 Ga., 314, particularly p. 316, opinion of court; 5 Id., 243 (4); 11 Id., 426 (2); 14 Id., 192 (2); 20 Id., pp. 748, 749, (3), (4); 44 Id., 454; 52 Id., 239 (6); 63 Id., 527, where the-doctrine is applied even to the intendant and commission- • ers of a town in levying taxes. The case of Cary vs. The State, determined by the Supreme Court of Alabama at its
Judgment affirmed.
Dissenting Opinion
dissenting.
I dissent from the opinion of the majority of the court in this case. Notaries public, known as commercial notaries, are to be appointed by the judges of the superior courts of the several counties of this state, and are to hold their offices for four years, and at the end of that time, if continued, their appointment must be renewed on the minutes of the court. Code, §§1497 to 1503, inclusive. The act of 1868, which is codified in the sections referred to, makes no limit as to the number of these officers, who may be appointed by the judge of the superior court in any county. In my judgment, it is the act of appointment by the judge of the superior court which creates the office and makes the officer; without this act, there is no office and no officer, and when the time expires for which the office was created and the officer appointed, the office ceases and no longer exists, and the officer likewise ceases to exist as an officer. It is as if no such office had ever been created or officer appointed. After the determination of the office by the expiration of the time for which the officer was appointed, the officer cannot exercise any function pertaining to the office, which does not exist; if, however, the person who formerly exercised the functions
It is admitted that no indictment for perjury could be maintained against the affidavit in this case; the majority of the court concede this. Yet our statute of assignments denounces the penalty for perjury against one who makes a false oath in a case of this kind. Rex vs. Verelst, 3 Camp., 433 ; Rex vs. Roberts, 14 Cox’s Crim. Cases, 101; 3 McCord, 308; 2 Bishop’s Crim. Law, sec 1021, p. 573.
A proposition or conclusion may be announced as common sense, good sense, but whether it be so or not depends upon its truth. If it be common sense or good sense, then it is true, otherwise it is nonsense and error. The human mind often arrives at conclusions by a process of its own, unknown to the thinker, which he announces as common sense or good sense. Whether the conclusion be true or not, depends upon the fact whether the mind had reasoned correctly and drawn a logical conclusion or not. If the proposition announced as common sense or good sense cannot stand the test of good logic, it is error and is not entitled to further consideration.
I think the jugdment should be reversed.