Smith v. Town of CaroLina Beach

BkogdeN, J. Are de facto officers of a duly constituted municipality authorized to issue and sign bonds for the necessary expenses of such municipality ? The provision of the town charter limiting the right of suffrage to real estate owners in the town is void by virtue of the provisions of Article VI of the Constitution of North Carolina. Notwithstanding, a mayor and commissioners have been elected in said town every two years since 1927, and said officers have purported to qualify, assuming and exercising openly and without question the duties not only imposed by the charter of the town, but by the general statutes of the state pertaining thereto. What is a de facto municipal officer ? A comprehensive definition of the term is found in Waite v. Santa Cruz, 184 U. S., 302, 46 L. Ed., 552, and is in the following language: “A de facto officer may be defined as one whose title is not good in law, but who is in fact in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper. When a person is found thus openly in the occupation of a public office, and discharging its duties, third persons having occasion to deal with him in his capacity as such officer are not required to investigate his title, but may safely act upon the assumption that he is a rightful officer.” The same general idea has been expressed by this Court, speaking through S. v. Lewis, 107 N. C., 967, 12 S. E., 457, as follows: “An officer de facto is one whose acts, though not those of a lawful officer, *837 the law, upon principles of policy and justice, will bold valid, so far as tbey involve the interests of the public and third persons, where the duties of the office were exercised . . . under color of an election or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such.” See, also, Van Amringe v. Taylor, 108 N. C., 196, 12 S. E., 1005; Hughes v. Long, 119 N. C., 52, 25 S. E., 743; Rodwell v. Rowland, 137 N. C., 617, 50 S. E., 319; Whitehead v. Pittman, 165 N. C., 89, 80 S. E., 976; Markham v. Simpson, 175 N. C., 135, 95 S. E., 106. The trial judge has found as a fact that said officers are de facto officers of the town and there is no exception to such finding. Moreover, the plaintiff cannot question the authority of these officers in this proceeding for two reasons: First, for a period of more than seven years the officers of the town have been elected pursuant to the provisions of the charter. The plaintiff has resided in the town for more than two years and has permitted such elections to be held and such officers to openly exercise and discharge all the duties and functions of regular officers of the municipality. Van Amringe v. Taylor, supra. Second, the right of the mayor and commissioners to assume and exercise official function can only be questioned by direct proceeding to declare the offices vacant. Markham v. Simpson, supra. Therefore, as the plaintiff cannot question the authority of the officers except in a direct proceeding, and as the official acts of such de facto officers are binding upon the public and third parties, it necessarily follows that the bonds will constitute valid obligations of the municipality. Indeed, the Supreme Court of the United States in the Waite case, supra, expressly held that bonds duly issued and signed by de facto officers of the municipality were valid obligations. Reversed. ScheNck, J., took no part in the consideration or decision of this case.