Cohn v. Beal

Chalmers, J., delivered the opinion of the court. This is mandamus by the holder of school warrants against the county treasurer to compel payment of them. The pleadings evoked by the suit were unnecessarily prolix and protracted, but finally resulted in developing this defense, to wit: that the warrants sued upon were based upon pay certificates granted by one Mrs. Belle V. Fairman, who, being a woman, was, under the constitution and laws of this State, ineligible to hold any office, but who had, in fact, nevertheless, pretended to be county superintendent of education, and under such assumption had issued pay certificates to the teachers of the public schools. To this plea the relator replied, that the said Mrs. Fairman was in the actual possession of the office of county superintendent, enjoying and exercising all the functions of the office, claiming the right thereto, and recognized and treated as such officer by the State and county authorities and the public generally; and that whether she was eligible or not, or lawfully in office or not, her official acts were valid as a defaeto officer, and could not be inquired into in a suit upon these warrants. Code of 1880, § 415. To this replication the defendant rejoined that, “ one G. A. Tennison, a male inhabitant of the county, was the lawfully qualified county superintendent of education in and for said county of Lawrence, and in possession of said office for and during the time named in said replication,” to which rejoinder relator demurred. The court below overruled this demurrer, and relator not asking to plead further, judgment final was entered against him, from which he appeals. The judgment was correct. Relator’s replication setting up that the official acts of a defacto officer cannot be inquired into collaterally, was good upon its face, but the rejoinder set up that there was at the time during which the warrants were issued a de jure officer in the possession of the office. As there cannot be a de facto incumbent of an office which is actually in the possession of a dejare officer, and as the demurrer admitted that there was such ' de jure officer in possession, the ruling of the court was manifestly correct. Judgment affirmed.