46 Conn. 218 | Conn. | 1878
Under a statute three residents of the town of Goshen, of whom the defendant was one, upon oath informed a justice of the peace of their belief that 0. J. Soudant, one of the plaintiffs, had within the month, in violation of law and without any license therefor, kept and sold intoxicating liquors in a house in the town occupied by him; thereupon the justice of the peacé issued a warrant to any constable of the town to enter and search the premises of the plaintiffs, seize the liquors thereon found, and hold the same until disposed of pursuant to law. By virtue of this warrant one Adams, a constable of the town, accompanied by the defendant, who acted as his assistant upon his command, entered upon the premises, and seized and carried away certain liquors there found. The plaintiffs then brought this action of trespass to the Superior Court for Litchfield County, alleging that the defendant with force and arms broke and entered into their -house at the hour of eleven o’clock at night, remained a long time and made great noise therein, and seized and carried their liquors therefrom. The defendant filed a plea in which he alleged that he acted as the assistant and servant of a duly elected constable. The plaintiffs replied that Adams was not at the time of the seizure a lawful officer, for the reason that he had not then given the bond required by the statutes for the faithful discharge of his duties, and therefore had no authority to act himself or to compel the defendant to act; also, that upon the hearing the justice of the peace, for the reason aforesaid, upon motion of the plaintiffs, had abated and dismissed the process and ordered the return of the liquors; that the defendant was a party to the complaint and process, and that the judgment of the justice .of the peace had never been appealed from, reversed or set aside, and remained in full force.
To the replication the defendant rejoined, alleging that although Adams had not given any bond, yet that in the service of the warrant and in commanding the assistance of the defendant he was an officer de facto, and as the defendant verily believed an officer de jure; and that after assisting him he left the liquors in his hands as such constable to be
The advice of this court is asked as to the judgment to be rendered in the cause.
In Plymouth v. Painter, 17 Conn., 585, this court said as follows : “ An officer defacto is one who exercises the duties of an office under color of an appointment or election to that office. He differs on the one hand from a mere usurper of an office, who undertakes to act as an officer without any color of right, and on the other from an officer de jure, who is in all respects legally appointed and qualified to exercise the office. These distinctions are very obvious and have always been recognized. It is not in all cases easy to determine what ought to be considered as constituting a colorable right to an office, so as to determine whether one is a mere usurper, but it is not necessary in the present instance to examine the cases on that point, since, according to all the authorities, here was undoubtedly a fair color of right in the person acting as a grandjuror, to exercise that office, whether he was legally qualified to do so or not. He was plainly more than a mere usurper: he was legally appointed by the town to the office, and was eligible to such appointment, and, claiming a right to act under it, took in due form the oath prescribed by the law for the office. These would,' confessedly, be sufficient to' confer on him a perfect legal title to the office, but for what intervened between the appointment and the taking of the oath. Whatever may be the effect of what thus intervened upon the question whether he could afterwards rightfully become qualified for the office by taking the oath, it is clear that the administration of it, in connection with his previous appointment, gave him at least a color, pretence, or show of right to exercise the office; which is all that is necessary to constitute him an officer de facto. Even if his previous refusal to take the oath legally disqualified him from subsequently doing so, this effect was not • so palpable and obvious as to deprive him of a fair color of right to exercise the office. There was an observance of all the legal forms requisite to enable him to act as such officer; and
Upon these authorities it is quite certain 'that the defendant, knowing that Adams was exercising the office of a constable
The plaintiffs insist that even if Adams was a legally elected and qualified officer, his entry in the night season was unlawful, and that thus the defendant remains without justification.
The declaration is in one count, and is so framed that it may be understood as alleging that the defendant assisted an usurper of the office of constable in serving a lawful warrant for search and seizure, setting out the hour of the night, the noise and the disturbance, as attendant circumstances of aggravation for the purpose of increasing the damages; or as charging that he assisted a duly elected and qualified officer in serving a lawful warrant at an unlawful hour. In his plea the defendant justified his act as having been done in obedience to the command of an officer having authority to compel his assistance. The plaintiff replied that Adams had not given the statutory bond, and therefore had no authority either to act himself or compel the defendant to act. The defendant rejoined that although Adams had given no bond, he had been legally elected to the office of constable, had exercised it, was an officer de facto, and as the defendant verily believed an officer de jure, and therefore he might lawfully submit to his command. The plaintiffs answered that the matters and things pleaded in the rejoinder were insufficient in the law and put themselves upon the court for trial; and the defendant joined issue.
When it became apparent to the plaintiffs that the defendant interpreted the declaration as charging him with assisting an usurper, and in his plea and rejoinder made answer only to that, the plaintiffs, instead of uniting with him in narrow
We think that the issue as to the time of service was not presented by the pleadings.
We advise the Superior Court that the rejoinder is sufficient.
In this opinion the other judges concurred.