93 Mich. 332 | Mich. | 1892
This is an action of replevin, brought against the defendants to recover a stock of goods and merchandise, consisting mostly of groceries, provisions, store fixtures, and furniture, then in the Tower block in the city of Ionia.
The facts necessary to be stated are these: One Fred A. Tower, being the owner of the property now in controversy, and being justly indebted to Sarah J. Tower, the
Tbe point of contention raised by defendants is that tbe
“ The clerk of said city shall have all powers and duties of township clerks, in addition to the other duties hereby imposed upon him. * * * He is also hereby authorized and empowered generally to administer oaths and to take affidavits.”
Among the powers of a township clerk is that of appointing a deputy, who shall take an oath of office, and file the same with the clerk; and, in case of the absence, sickness, death, or other disability of the clerk, such deputy shall perform the duties of such clerk. How. Stat. § 743. We therefore have no hesitation in saying that under these provisions the city clerk of 'Ionia had a right to appoint a deputy, who, upon the happening of either of the contingencies named, had the right to perform all the duties which the clerk himself could legally perform.
The defendants contend that, even if the clerk has this power to appoint, yet the deputy appointed would only have the right to perform such duties as appertain to township clerks, but without the enlarged rights conferred upon the city clerk to administer oaths and take affidavits.
We think this much too narrow a construction to place upon the legislation. It cannot be that the Legislature intended to create the danger and confusion Avhich such a condition would create; and having, by the authority granted, clearly conferred the right upon the city clerk to appoint a deputy, it is equally clear that it was intended to give the deputy the same power as the principal upon the happening of a contingency which authorized the deputy to act at all. The city clerk, therefore, having
According to the common law, a deputy was one who exercised an office in another’s right. In general, all ministerial duties which the principal himself has a right to perform may be discharged by a deputy. The following authorities illustrate the general rule that the duties of a deputy are coextensive with the duties of a principal, and that, consequently, the act of the deputy in the present case was an official act, and hence as valid in all respects as though it were the act of the principal: McRaven v. McGuire, 9 Smedes & M. 34; Abrams v. Ervin, 9 Iowa, 87; Com. v. Arnold, 3 Litt. (Ky.) 316; Triplett v. Gill, 7 J. J. Marsh. 438; Hope v. Sawyer, 14 Ill. 254; Eastman v. Curtis, 4 Vt. 616; Beaumont v. Yeatman, 8 Humph. 542; Parker v. Kett, 1 Ld. Raym. 658; Malony v. Mahar, 2 Doug. 432; State v. Ruff, 29 Pac. Pep. (Wash. St.) 999.
The defendants also contend that, although Charles Girard was recognized as a deputy by every one having any business to do at the office of the city clerk, including the public officials of that city, yet there were certain irregularities in the manner of his appointment, or in reference to the time when his official oath was filed, which defeat his legal title to that office. This objection cannot be heard in this proceeding. The record shows that at the time this affidavit was made he was, and for a long time before had been, openly and without objection performing the duties of the office of deputy city clerk. He was de facto that officer, and his title to it cannot be questioned collaterally. The actual legal right of one in possession of an office cannot be tried in a collateral proceeding- between
We discover no error in the findings of the circuit judge, and the judgment is affirmed, with costs of this-Court.