Hand v. Deady

The question for consideration is whether David Benjamin may, as to the plaintiff, be treated as having been

It is clear that he was not a trustee de jure; and, to constitute a defacto officer, it is essential that his acts of official character be founded upon some colorable right to the office, having the form of election or appointment, or that he has acted as such, with the acquiescence of the public, for a sufficient length of time to permit the presumptiqn of an election or appointment. This presumption arises from the reputation he thus acquires as an officer from such acts and acquiescence. Then, as matter of public policy, his acts in his apparent official capacity are not subject to collateral attack to the prejudice of others, and to them and the public, they are deemed effectual and valid. Wilcox v. Smith, 5 Wend. 231 ; Parker v. Baker, 8 Paige, 428; Hamlin v. Kassafer, 15 Or. 456 . And in fact it is prima facie sufficient to establish the official character of local officers to show that they are generally reputed to be, and have acted as, such. McCoy v. Curtice, 9 Wend. 17 . It does not appear that David Benjamin had so acted, with the acquiescence of the public, as to give him, in the district, the reputation of trustee, at the time the alleged contract was made. He had then assumed to act as such for less than a month, and in a very few days after he entirely ceased to act as trustee. The official acts to be performed within that time were probably few, and those he did perform were not numerous. In Wilcox v. Smith, Mr. Justice Sutherland said that “the mere claim to be a public officer, and the performance of a single act, or even a number of acts, in that character, would not, perhaps, constimte an individual an officer de facto." And in Rochester & G. V. R. Co. v. Clarke Nat. Bank, 60 Barb. 234 , it was said that, “To constitute a person an officer de facto, a mere claim to be such officer, and exercising the duties of the office, are not sufficient. It is

, The statute provides that the inhabitants entitled to vote, when duly assembled in any district meeting, shall have power, by a majority of the votes of those present, to appoint a chairman, and to choose a trustee. Laws 1864, c. 555, tit. 7, § 16. There was a meeting held in the district, having the power to choose a trustee. The ludicrous occurrence referred to, in which David Benjamin was there the principal actor, was evidently treated by those present as a jest, as, following it, the meeting proceeded, in the usual—as well as an orderly—manner, to elect, and elected, a trustee, without, so far as appears, any assertion of claim or suggestion of David Benjamin, or any other person, that he had been chosen to the office.

The election of James Benjamin as trustee was entered in the minutes of proceedings kept by the clerk of the meeting. Ro reference in them was made to the transaction before mentioned, preceding such election. It is difficult to see, in what took place at the meeting, any colorable selection by it of David Benjamin as trustee. It evidently did not there, and at the time, have an appearance of his election as trustee, nor does it seem to be entitled to the characterization of such appearance, without which it lacked the quality essential to invest him with the color of right to the office. This was somewhat emphasized by the fact that seven of the eight legal voters at the meeting did not vote “ Aye ” on the motion put by David Benjamin. But the learned trial judge, as appears by his charge to the jury, lays stress, in support of his color of election, upon the fact that some one voted “ Aye,” and that when David Benjamin stated that he was trustee, no one raised any objection to it. There would have been more force in that fact if the meeting had not then proceeded to the election of a trustee. This indicated how the transaction appeared to those present, and characterized the understanding of such declaration of David Benjamin as a mere naked assertion on his part, to which the meeting did not accede.. There must be the form of an election or appointment to an office, to give a colorable claim to it; and it is then sufficient to constitute his acts following it as those of a de facto officer, although, by reason of some defect or irregularity, the election or appointment is illegally or inefficiently made. The difficulty with the claim in behalf of David Benjamin is that the meeting did not give him the form of election, nor did it recognize or acquiesce in his assertion there made that he was trustee. The mere claim of a person that he is an officer docs not relieve his acts from the character of usurpation, and give him the character of an officer defacto, unless he has notoriously performed them for such length of time, with the acquiescence of the public, as to give him the general reputation in the official district of being in that respect what he thus assumes to be. Then, as be

The judgment and order should therefore be reversed, and a new trial granted; costs to abide the event.

All concur.