Keyser v. M'Kissan

The opinion of the court was delivered by Rogers, J. — This is an appeal from the'decision of Justice Huston, at a Circuit Court held for the county of Franklin. The defendants move the court for a new trial, on the ground of a misdirection: 1. In instructing the jury, that the issue, whether Benjamin Keyser and Jacob Wonderlich, had taken the oath of office, was •an immaterial issue. 2. That the verdict was against law and evidence; and, 3. Because the court instructed the jury, that the plaintiffs, as commissioners, could maintain this action, without having taken the oath of office, required by the constitution of Pennsylvania. It is unnecessary to consider the first reason assigned; as, if the defendants'faii in their second and third, it will be conclusive against the application. These were suits brought by Benjamin Keyser and others, commissioners of the county of Franklin, against the treasurer of the ■county and his sureties, on the official bond, taken in pursuance of the directions of the thirteenth section of the act of assembly of the 11th of April, 1799. It is objected, that the plaintiffs, who are the ■commissioners, and from whom the treasurer received his appointment, had not taken the oath to support the constitution; and it is strenuously contended, that this omission renders the bond void. After the decision of the court in Riddle v. The County of Bedford, we consider the oath necessary, as well in the case of the commissioners, as the treasurer. The cases are not distinguishable in principle. It must also be conceded,'as the matter now stands, that the oaths were not, in fact, taken by the commissioners. The [140] rule which governs the case is, that the commissioners, who appointed the treasurer, were officers de facto, since they came into their office, by colour of title. It is a well settled principle of law, that the acts of such persons are valid when they concern the public, or the rights of third persons, who have an interest-in the act done. 7 Johns. Rep. 554. The People v. Collins, Andrew’s Rep. 263. King v. Lysle. Arid this rule has been adopted to prevent a failure of justice. And the distinction between the public, strangers, and the officer himself, is recognised in Riddle v. The County of Bedford, 7 Serg. & Rawle, 386. “A county treasurer," says the court, “is an officer within the eighth articlé of the constitution, and must take an oath of office, and he cannot sustain a suit to recover his fees as such officer, when he has not taken the oath, and there is no acquiescence in the defendant:" In Riddle v. TheCouniy of Bedford, the plaintiff, who was the treasurer, w§s defeated, on the ground that the suit was brought for the benefit of the officer, who had omitted to qualify himself, by taking the necessary oath. If suit had been brought for the use of the public, it may be collected from the whole reasoning of the learned -judge who delivered the opinion of the court, the result would have been different. The reason given for the rule is most satisfactory: “ That the act of an. officer de facto, where it is for his own benefit, is void; because, he shall not take advantage of his own want of title, which he must be conusant of; but where it is for the benefit of strangers, or the public, who are presumed to be ignorant of such defect of title, it is good. Cro. Eliz. 699. Andrew’s Rep. 163. King v. Lysle, 2 Lev. 184. Hippsly v. Tucke. That the commissioners, who appointed the treasurer, were officers de facto, is certain, as they possessed every qualification of officers de jure, except in the one particular, that they had omitted taking the oath prescribed by the constitution. They had, at least, colour of title. It is equally clear, this suit is not brought for their individual benefit, but for the use of the public; for breach of the defendant’s official bond. This case is, then, embraced within all the rules settled in the various decisions cited from England, New York, and our own Reports. An officer defacto may do such things as are for the good of the corporation. Vide King v. Lysle, Andrew’s Rep. 163. A treasurer, to receive the county monies, was indispensable. The commissioners had-the power of appointing him, and as a consequence, of exacting securityfor the faithful performance of the trust. The greater includes the less. It is a defence, not entitled to much favour on the part of the treasurer and his sureties, that the appointment is void, and in this .way to endeavour to excuse themselves from the performance of a contract; entered into with a full knowledge of all its legal consequences. Common honesty, and public policy, require that they should be estopped from such a defence. [141] I do not observe, that the point was made in the Circuit Court, that the new treasurer of the county was not sworn, an.d that there was no person, before the commencement of the suit, to whom the defendant could legally pay over the money. This is hot among the reasons for a new trial, and if it were, it would not, in the opinion of the court, avail the defendants. A payment to a treasurer de facto, w-ho had colour of title, would have been good against the corporation. It is a mere pretence to avoid payment of the money which is justly due; and on a motion for a new trial, we will not turn the plaintiffs round on a technical objection, when it islnanifest", the result of the second suit must be in favour of the plaintiffs. We agree with the Circuit Court, that the verdict was according to law and the evidence; and, therefore, the judgment of the Circuit Court is affirmed. Judgment affirmed.