George Sutherland

“ Was respondent, under these circumstances, a major de facto? The government contends not upon the grounds: (1) There was no attempt to appoint him to the office of major by any officer possessing the power of appointment; (2) there is no proof that there was a vacancy in the office of major. Neither ground is tenable. ”

“ While some general expressions will be found in the decisions tending to support the government's contention, the rule is well established that to constitute an officer de facto it is not a necessary prerequisite that there shall have been an attempted exercise of competent or prima facie power of appointment or election. ”

“ The leading case is State v. Carroll, 38 Conn. 449, 456-466, 472, 9 Am. Rep. 409, where the English and American cases are fully reviewed; In re Ah Lee (D. C.) 5 F. 899, 907 et seq.; Heard v. Elliott, 116 Tenn. ”