Parker v. Board of Supervisors

Elandbau, J. By the Court The facts stipulated by the parties show clearly that although Parker was entitled to the office of District Attorney of Dakota County, and was the officer de jwre, yet Smith was fix possession of the office under color of an election, and was fox-tified by the certificate of [63] election from the proper officer. The question is, (the Board having paid the salary to Smith) were they justified in so doing, and can Parker maintain an action against them for the salary during the period that Smith held the office defacto and received the salary ? The stipulation declares that' “ Parker acted as District Attorney whenever called upon during the years 1858 and 1859.” This fact could only have been inserted in the stipulation to show notice in the Board of his claim to the office, because it could not have effect in any other way that I can see. There cannot be two persons in possession of the same office at the same time, the one de jure and the other defacto. Where there is but one office, there can be but one in possession of it. Boardman and Parry vs. Holliday and others, 10 John. Ch. R. 223. Parker can take no advantage from his having acted as District Attorney, if he admits that Smith was the officer de faeto, because it is impossible that Smith and himself could both stand in that relation to the same office. If this fact was inserted in the stipulation to charge upon the Board of Supervisors, notice of his claim to the office, it fails, in not showing that he was ever instructed by them to act in that capacity. He might have been called upon to act as District Attorney in many ways, and the Board of Supervisors been entirely ignorant of the fact, so I cannot see that this part of the stipulation can be made operative in any way, to influence the question of the propriety or impropriety of the payment made to Smith. The rule that the acts of an officer de faeto are valid so far as they affect the public, is too well settled, and too valuable to the interests of society, to be now questioned or encroached upon. The act of the officer de faeto, is sustained upon the ground that to question it, would devolve upon every citizen transacting business with the official, the duty of deciding for himself the regularity, the eligibility, and every other condition upon which depends the title of the incumbent to the office he holds, or to deal with him at his peril. No such risk is incurred by third parties, but the fact that a person is in the quiet and notorious possession of an office, and exercising its functions under color of authority, is a perfect warrant for every one to recognize his official character, both by invoking [64] his powers, and paying him the fees allowed by law for his services. I cannot see any reason why the Board of Supervisors in paying the salary of an officer of the county, should be governed by different rules. They are not officially in possession of any facts concerning the election or eligibility of an Official beyond those open to the private citizen. The circumstances of this case forcibly illustrate the impracticability of requiring any one to look beyond the presumption arisingfrom the possession, exercise and enjoyment of the office, in determining who is the officer, as they show that the disqualification may fiow from facts wholly occult; and as this presumption is sufficient to justify the Board in engaging the official services of the person in possession in behalf of the county, it must also afford them protection in paying to him the fees ox-salary allowed by law as his compensation. Wlxat effect a proper notice of the claimant Pax-ker’s rights, and a protest from him against the salary being paid to Smith, 'properly served xxpon the Board before payment made to him, woixld have had upon the question of a recovery by Parker against the Board, after his being inducted into the office, it is unnecessax-y to decide, as it does not appear from the case, that the Board knew that any oxxe except Smith made any claims whatever to the office. And indeed it may well be doubted whether the Board had any right to adjudge the election of Smith null, in any such collateral proceeding as an application for the paymexxt of the salary of the office, or at all, they not being a judicial body. Ixi the case of The People ex rel. Bush & Higby vs. Collins, 7 John. 549, a Towxx Clerk refused to record a survey of a road, because one of the commissioners had signed the survey by a name different from the one by which he was elected, and had not qualified according tó law, by taking the oath and filing a certificate of it with the Clerk, but the Court awarded a peremptory mandamus against him, holding that the commissioner was an officer defacto, and the Clerk being a ministerial officer merely, had no right to adjudge his acts null, and refuse to recognize them. This is a much stronger case than the one at bar, as there the Clerk being the depositax-y of the oath of the commissioner, had official kixowledge that he was not qualified to act, yet he was [65] held bound to recognize him. The principle is here carried to the fullest extent. The decision below was correct, and the judgment is affirmed.