Stephen Johnson Field

“ An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
In Hildreth v. McIntire, 1 J. J. Marsh. 206, we have a decision from the court of appeals of Kentucky which well illustrates this doctrine. The legislature of that state attempted to abolish the court of appeals established by her constitution, and create in its stead a new court. Members of the new court were appointed, and undertook to exercise judicial functions. ”

“ Where no office legally exists, the pretended officer is merely a usurper, to whose acts no validity can be attached; and such, in our judgment, was the position of the commissioners of Shelby county, who undertook to act as the county court, which could be constitutionally held only by justices of the peace. ”

“ And all that is required when there is an office to make an officer de facto, is that the individual claiming the office is in possession of it, performing its duties, and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary that his election or appointment be valid, for that would make him an officer de jure. ”

“ Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions. As said by Mr. Justice MANNING, of the supreme court of Michigan, in Carleton v. People, 10 Mich. 259: 'Where there is no office there can be no officer de facto, for the reason that there can be none de jure. The county office existed by virtue of the constitution the moment the new county was organized. ”

“ There cannot be more than one court of appeals in Kentucky as long as the constitution shall exist, and that must necessarily be a court de jure. When the government is entirely revolutionized, and all its departments usurped by force or the voice of a majority, then prudence recommends and necessity enforces obedience to the authority of those who may act as the public functionaries, and in such a case the acts of a de facto executive, a de facto judiciary, and a de facto legislature must be recognized as valid. ”

“ The court said: 'Although they assumed the functions of judges and clerk, and attempted to act as such their acts in that character are totally null and void, unless they had been regularly appointed under and according to the constitution. A de facto court of appeals cannot exist under a written constitution which ordains one supreme court, and defines the qualification and duties of its judges, and prescribes the mode of appointing them. ”

“ The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment of election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices, and in apparent possession of their powers and functions. ”

“ This seems to us so obvious that we should hardly feel called upon to consider any adverse opinion on the subject but for the earnest contention of plaintiff's counsel that such existence is not essential, and that it is sufficient if the office be provided for by any legislative enactment, however invalid. Their position is that a legislative act, though unconstitutional, may in terms create an office, and nothing further than its apparent existence is necessary to give validity to the acts of its assumed incumbent. ”

“ State, 3 Head, 689, only goes to show that the illegality of an appointment to a judicial office does not affect the validity of the acts of the judge. The constitution of Tennessee requires a judge to be 30 years of age. A judge under that age having been appointed, it was held that he could be removed by a proper proceeding, but until that was done his acts were binding.
In Fowler v. Bebee, 9 Mass. 231, the legislature passed an act erecting the county of Hampden, and provided that the law should take effect from the first of August next ensuing. ”

“ There the charter of the Ohio & Mississippi Railroad Company, created by the legislature of Indiana in 1848, as amended in 1849, authorized the commissioners of a county through which the road passed to subscribe for stock and issue bonds, provided a majority of the qualified voters of the county voted on the first of March, 1849, that this should be done. The election was held on that day, and a majority of the voters voted that a subscription should be made. ”

“ Of the great number of cases cited by the chief justice, none recognizes such a thing as a de facto office, or speaks of a person as a de facto officer, except when he is the incumbent of a de jure office. ”

“ To ratify is to give validity to the act of another, and implies that the person or body ratifying has at the time power to do the act ratified. As we said in Marsh v. Fulton Co., where it was contended, as in this case, that certain bonds of that county, issued without authority, were ratified by various acts of its supervisors, 'a ratification is, in its effect upon the act of an agent, equivalent to the possession by him of a previous authority. ”

“ For the good order and peace of society their authority is to be respected and obeyed until, in some regular mode prescribed by law, their title is investigated and determined. It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question. ”

“ The plaintiffs became the holders of 60 of these coupons, and upon them the suit was brought against the commissioners of the county. After the subscription was voted, but before it was made or the bonds issued, the new constitution of Indiana went into effect, which contained the following provision: 'No county shall subscribe for stock in any incorporated company unless the same be paid for at the time of such subscription, nor shall any county loan its credit to any incorporated company, nor borrow money for the purpose of taking stock in any such company.' Article 10, § 6. ”

“ A careful examination of those decisions fails to support this position. The opinion that the act was invalid because it was special legislation, applicable only to certain counties, would seem, indeed, to be thus modified. But the adjudication that the constitution did not permit the appointment of commissioners to take the place of the justices of the peace for the county, and perform the duties of the county court, stands unimpaired, and as such is binding upon us. ”

“ In September, 1852, the board of commissioners, pursuant to the acts and election, subscribed for 600 shares of the stock of the railroad company, amounting to $30,000, and in payment of it issued 30 bonds of $1,000 each, signed and sealed by the president of the board, and attested by the auditor of the county, and delivered the same to the company. These bonds drew interest at the rate of 6 per cent. per annum, for which coupons were attached. ”

“ Conflicts of this kind should be avoided, if possible, by leaving the courts of one sovereignty within their legitimate sphere to be independent of those of another, each respecting the adjudications of the other on subjects properly within its jurisdiction. ”