This is а writ of error to reverse a judgment rendered in the municipal court for the town of Brunswick. The rulings at nisi prius were against the plaintiff in error, exceptions were taken, and in support of the exceptiоns the argument relies upon one essential ground, variously stated in several of the assignments of error. It is insisted that the judgment is erroneous,.because before it was rendered the judge of that court had vacated his office by accepting an election to the legislature, and by qualifying and acting as a member of that body. By that fact, it is claimed, the judge ceased to hold his office, becamе a member of the legislative, and could not be at the same time of the judicial department, and any judgment subsequently rendered by him was necessarily without jurisdiction and erroneous.
Independently of this claim, itis urged that, even if the authority of the judge had not expired, the court did not have jurisdiction of an action, involving the title to real estate, where the damages claimed exceeded twenty dollars. But we think the jurisdiction of the court was clear under the special laws of 1874, c. 565. Both the parties resided, and the land was situated, in Brunswick,
We have no doubt that under these provisions, and under E. S., c. 94, § 4, the court had jurisdiction of a process of forcible entry and detainer, inserted in a writ, and claiming damage in the sum of fifty dollars, -when bоth parties lived in Brunswick, and the land -was there situated.
■ We recur, then, to the principal inquiry in the case, and the conclusion wre have reached upon that -will render it unnecessary to consider whеther, if the judgment were void, as the plaintiff claims, a -writ of error was or was not the appropriate remedy. There is nothing to prevent, and we prefer to decide the main issue, rather than any quеstion of the form of process.
That the two offices, judge of the municipal court and member of the legislature, were incompatible, cannot be denied. Constitution of Maine, art. 9, § 2. Commonwealth v. Hawkes,
That to accept and qualify for one of these offices, while holding the other, would be a resignation of tho one first held, is a rule already adopted by this court. Stubbs v. Lee, 64 Maine, 195.
It follows that when Judge Humphreys was qualified as-a mеmber of the legislature, his strictly legal authority to act as judge of the municipal court ceased. He -was no longer judge de jure. If he continued to exercise the functions of a judge, he might have been ousted by an information in the nature of a quo warranto. Commonwealth v. Hawkes,
But the immediate question under considei'ation is, what was the character of his acts, as to validity or invalidity, during such continuance in the exercise of the duties of his judicial office, after expiration of the legal tenure. They must be void, unless
In State v. Carroll,
On this ground it was held that a justice of the peace, temporarily holding a city court, under a law alleged to be unconstitutional, Avas at least, under the circumstancеs of that case, an officer de facto, if not de jure, and judgments rendered by him were valid.
"An officer de facto,” the court say, "is one whose acts, though not those of a lawful officer, the law upon principles of policy and justice will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised;
"First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry, to submit to, or invoke his action, supposing him to be the officer he assumed to be.
"Second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond and the like.
*211 "Third, under color of a known election or appointment, void, because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.
"Fourth, under color of an election or appointment by or-pursuant to a рublic unconstitutional law, before the same is. adjudged to be such.”
It is clear that the first of these specifications was intended to include the case of an officer holding over after the expiration of' his term, or after it has been determined in any other way than, by lapse of time, as well as that of one who assumes the office' without an original appointment or election. In either case, at the time referred to, the officer is "without a known appointment or election” to uphold his acts. "In the case of public officers, who are such de facto, acting under color of office by an election or appointment not strictly legal, or without having qualified themselves by the requisite tests, or by holding over after the-period prescribed for a new appointment, as in the case of sheriffs, constables, &с.; their acts are held valid as respects the rights-of third persons who have an interest in them, and as concerns, the public, in order to prevent a failure of justice.” 2 Kent. 295..
In a learned note which Judge Redeiel» adds to the opinion,, cited from the Connecticut court, Law Register, March, 1873, it is said: " The result of all the cases seems to be that an officer ■ defacto is just what the term implies — one who by right, but without having complied with all the formal requisites and qualifications, or else by mistake and misapprehension, or perhaps by downright wrong and gross usurpation, is for the time exercising-the functions of the office, and whom from necessity all persons-having to do with such functions must employ, and to whose acts all must submit, since he holds the insignia of the office, and the power to enforce obedience to his demands.” From its statеment of the general rule in regard to the validity of the acts of officers. defacto, the note excludes the cases where the office itself is in. conflict, two or more persons claiming to hold it and each denying the authority of the other. To that class of cases, it is unnecessary
In Wilcox v. Smith,
The same rule is held in Brown v. Lunt, 37 Maine, 423, with a citation of authorities, and discussion of principles which leave very little to be added on the subject.
It is necessary only to add that the precise question under -consideration has been recently determined by the supréme court • of Massachusetts, in Sheehan’s Case,
Upon habeas corpus, the court refused to release a prisoner 'committed by the magistrate under such circumstances, although' upon information filed, as we have seen —
Exceptions overruled.