James, P. J.
The acts of mere usurpers of office, without any color of title, are undoubtedly wholly void, both as to individuals and the public; but where there is color of lawful title, the doings of such officers, as it respects third persons and the public, must be respected until they are ousted by an appropriate proceeding to try the validity of the title to the office. It has been repeatedly adjudged that the acts of an officer de facto, though his title may be bad, are valid, so far as they concern the public and the rights of third persons who have an interest in the things done. (Green v. Burke, 23 Wend. 490. The People v. Stevens, 5 Hill, 630. The People v. Hopson, 1 Den. 574. Plymouth v. Painter, 17 Conn. Rep. 585.) But in an action against a person for acts which he would have authority to do only as an officer, he must, in order to make out a justification, show that he is [35]*35prima facie an officer de jure. (Green v. Burke and The People v. Hopson, supra. Fowler v. Beebe, 9 Mass. Rep. 231.)
The question presented is, was there not proof, or an offer of proof, prima facie sufficient to show that the defendants were such trustees P The defendants offered to prove that when they issued the warrants they were acting trustees of this district, which was excluded, and it was subsequently proved that the defendants did act as trustees of said district, were the only persons who discharged that duty, and that they were reputed to be such officers.
It is a general rule that the best evidence should be produced of which any case in its nature is susceptible. This rule does not demand the greatest amount of evidence which can possibly be given of any fact. Its design is to prevent the introduction of any which, from the nature of the case, supposes that better evidence is in the possession of the party, to prevent fraud. This rule, however, was adopted for practical purposes, and should be so applied as to promote the ends of justice. It is therefore subject to exceptions, where the general convenience requires it; and naturally leads to the division of evidence into primary and secondary classes. Among the exceptions to the foregoing general rule, proof that an individual has acted notoriously as a public officer is prima facie evidence of his official character, without producing his appointment. (Greenl. Ev. § 83. Berryman v. Wise, 4 Term Rep. 366. Wilcox v. Smith, 5 Wend. 231-4. U. S. v. Reyburn, 6 Peters, 352, 367. Rex v. Gordon, 2 Leach, 581, 585, 586. Rex v. Shelley, Id. 581, n. 7 Peters, 100. Bryan v. Walton, 14 Geo. Rep. 185. Allen v. State, 21 id. 217.) On this subject Greenleaf, in his work on Evidence, (vol. 1, §§ 91, 92,) says : “ The rule rejecting secondary evidence is subject to some exceptions, grounded upon the public convenience, or the nature of the facts proved. Thus the contents of any record of a judicial court, and of entries in any other public books or registers, may be [36]*36proved by an examined copy, and is admitted because of the inconvenience to the public which the removal of such documents might occasion, and also of the public character of the facts they contain. For the same reasons, and from the strong presumption arising from the undisturbed exercise of a public office, that the appointment to it is valid, it is not, in general, necessary to prove the written appointments of public officers. All who are proved to have acted as such, are presumed to have been duly appointed to the office, until the contrary appears, (Wilcox v. Smith, and Plymouth v. Painter, supra;) and it is not material how the question arises, whether in a civil or criminal case, nor whether the officer is, or is not, a party to the record, (Rex v. Gordon, and Berryman v. Wise, supra ; McGahey v. Alston, 2 Mees. & Wels. 206, 211; 3 Term Rep. 632 ; 6 id. 663; 5 B.& A. 243; 2 Campb. 131; 3 id. 432;) unless, being plaintiff, he unnecessarily avers his title to the office, or the mode of his appointment, in which case the proof must support the entire allegation.”
Phillips, in his Treatise on Evidence, (vol. 1, p. 432,) says: “ It is not in general necessary to prove the written appointments of public officers; for this would be attended with general inconvenience, and a strong presumption arises from the exercise of a public office that the appointment to it is valid. The cases upon this subject sometimes appear to be governed by the doctrine of admissions, but it will be seen by the example that the exception is of a more extensive nature. In the case of all peace officers, justices of the peace, constables, &c., it is sufficient to prove that they acted in these characters, without producing their appointments.” Potter v. Luther (3 John. 431) was an action of trespass de bonis asportatis ; the defendant pleaded that he was a deputy sheriff, and took the property by virtue of a fi. fa. against the plaintiff, and offered to -prove by reputation that he was general deputy of the sheriff. The evidence was overruled, and the plaintiff had judgment. On certiorari to the supreme [37]*37court the judgment was reversed, the court holding the proof admissible and sufficient. The case of McCoy v. Curtice (9 Wend. 17) goes to the whole extent of the principle here contended for. The action was trover : the defendant justified the taking as a collector of a school district, under a warrant against the plaintiff. On the trial he produced the warrant, proved by parol that the persons signing it were reputed to be and acted as trustees of said district, and also proved by parol, under objection, that he acted as collector of said district, and as such took the property. The defendant had a verdict, and the plaintiff sued out a writ of error. The court in disposing of the case say: “ It is a general rule in relation to all public officers that they may establish their official character, by proving that they are generally reputed to be, and have acted as such officers, without producing their commission or other evidence of their appointments;” citing the various authorities to which allusion has hereinbefore been made.
Thus it will be seen that in all these cases the principle is distinctly recognized and acted upon, that in an action against a person for an act which he had no right to do unless an officer, he must show that he was prima facie an officer de jure, and that proof of acting as such under color of authority and of reputation is admissible evidence for that purpose, and if proved, is sufficient, in a collateral proceeding like this, to establish that character.
It therefore follows that a new trial should be granted for the refusal to receive such evidence when offered, or if not rejected when given, for disregarding it in the determination of the case.
But supposing I am mistaken in this view, did not the defendants prove themselves trustees de jure by other proof given on the trial ? As to Spooner the proof was clear. The question arises as to Beardsley and Bigelow. All the acts complained of took place between February, 1857, and March, [38]*381858, previous to which the two latter named defendants claim to have been elected trustees.
• The statute provides that each school district shall have three trustees, unless the inhabitants otherwise determine, whose term shall be for three years. Trustees have the power to call special meetings in their respective districts; the inhabitants of a district when convened at a special meeting have power to choose trustees as often as the office becomes vacant; in case a vacancy shall happen in such office by death, refusal to serve, removal out of the district, or incapacity, and the vacancy shall not be supplied by a district meeting within one month thereafter, the supervisor is authorized to appoint; and every person duly chosen or appointed trustee, who without sufficient cause shall refuse to serve therein shall forfeit the sum of $5, and every person so chosen or appointed and not having refused to accept, who shall neglect to perform the duties of his office, shall forfeit the sum of $>10. This is the substance of the statutes. There rests in the trustees the power to call special meetings, and in such meetings the power to fill vacancies and impose a penalty against any person elected who shall refuse or neglect to serve.
The defendants showed a call for a special meeting of the inhabitants of said district for the purpose of filling the vacancies in the office of trustees, and the assembling of the inhabitants under that call, the election of the defendants Beardsley and Bigelow as trustees to fill vacancies, and their acceptance by entering upon the duties of the office. This was proof of an election by the competent authority, and constituted them prima facie trustees de jure. The plaintiff sought to defeat this prima facie title to office by attacking the regularity and legality of the election. He was permitted, under objection and exception, to give evidence in order to show that no vacancy in the office of trustee existed when the defendants were chosen. The admission of that evidence was error. The authority to call a special meeting [39]*39to fill a vacancy in the office of trustee being vested in the remaining trustees, and the powers to fill it, in the meeting when assembled under such call, the act of the trustees in calling it, and of the meeting in filling it, were quasi judicial acts, because both trustees and the meeting must first have determined and adjudged that a vacancy existed.
Therefore, whether or not there was a vacancy in fact, and if there was, whether it had existed for over one month before the election; and if it had, whether it arose from a cause which authorized it to be filled by the supervisors of the town, is wholly immaterial J because they are not questions which can be traversed in this action. Such matters can only be traversed in a direct proceeding to set aside or quash the election ; and until such election be so set aside or quashed by such proceeding, the defendants are protected for all acts done by virtue of the office held under color of such election.
This is like the case of Wood v. Peake, (8 John. 69.) The defendant being sued for trespass, justified his acts as constable, under an appointment from three justices, to fill a vacancy. The plaintiff proved there was no vacancy; that the person whose office the defendant was appointed to fill had never refused to serve, was able to serve, and did serve. The evidence was objected to, but admitted, and the plaintiff had judgment on review. The court said, “the statute declares that if any constable chosen &c. shall refuse to serve, it shall be lawful for the inhabitants of the town to supply such vacancy at a special town meeting to be notified and held, &c., and that if the town shall not within fifteen days next after such refusal &c. choose another, it shall be lawful for any three justices of the peace, residing in or near such town, and they are required, by warrant under their hands and seals, to appoint any such officer which the town ought to have chosen, and every officer so appointed shall hold his office for so long time, and have the same powers, and be liable to the same penalties, as if elected. And if any person so appointed a constable, &c. shall refuse to serve, [40]*40he shall forfeit a' penalty of $62.50. This appointment is a judicial act; for the justice must first determine and adjudge that there is a vacancy in the office, and that the town neglected to fill it up. It is not traversable in such a collateral action. The appointment remains valid until it be set aside or quashed in the regular course, upon certiorari. It is certainly sufficient to justify the constable. He comes to the office by appointment, regular according to the forms of law, and by a tribunal having jurisdiction in the case, and he is bound to accept, under a penalty. He is not to inquire, at his peril, into the validity of the act. It is sufficient that three justices have authority to make such an appointment in a given case. It would be intolerably oppressive to place the constable in the dilemma of subjecting himself to a grievous penalty if he refuses, or of being prosecuted for trespass if he accept.” The testimony to impeach the appointment was held inadmissible,' and the judgment reversed. See this case approved in Green v. Burke, (23 Wend. 502.)
In this case the defendants showed their election by authority competent to elect to such an office in a given case, and that election remains valid until quashed or set aside by due process of law; and the incumbents are protected for acts done in virtue of the office.
Again ; were it necessary, the plaintiff should be held estopped from denying the defendants’ title to the office. He was present at their election, remained silent when the office was being filled, as vacant, made no objection when it was filled, and without objection saw the defendants enter upon the duties and assume responsibilities in said office, himself neglecting to act in his now claimed official character.
Again; suppose the plaintiff not estopped, and that the defendants’ title to the office could be tried in this action, how stands the case upon the proof ? Spooner’s title was not denied; no proof was given or offered, to show that Bigelow was not elected to an actual vacancy, and therefore the whole question would turn upon Beardsley’s title. The [41]*41proof offered, to show that no vacancy existed for Beardsley to fill, was that the term for which the plaintiff had heen elected, in 1854, had not expired ; and that he was then, and ever % since his said election had heen, a resident of the district. This did not show that no vacancy existed. It may all have been true, and probably was, and yet the office at the time vacant by reason of the plaintiff's refusal to serve, resignation or incapacity; and after the other evidence, the legal presumption, in the absence of affirmative proof, was that a vacancy did exist. The court on the trial held the reverse. It held that proof of an election two years before, for three years, was prima facie evidence that the office was still held by such persons, notwithstanding it had been declared vacant by competent authority, another elected to fill it, and in possession. But the defendants did not rest upon the presumption of law; they proved that the plaintiff had not done any business as trustee for some time before the special meeting at which Beardsley was elected, and that he was present at that meeting. This showed a refusal to serve. A refusal to serve is a general non-performance of the duties of the office. (Spafford v. Hood, 6 Cowen, 478.) It would never do to say that no act should operate to create a vacancy in an office, short of an absolute or declared refusal. A refusal to serve may be as clearly and strongly inferred from the acts of an incumbent, as a direct assertion that he will not discharge the duties of the office. (The People v. Carrique, 2 Hill, 93, 97.) A virtual refusal to serve, was clearly shown in this case. The inhabitants of the district so understood and acted upon it, and the plaintiff's presence at the filling the vacancy, and subsequent conduct, approved their understanding and ratified their acts. Such being the case, Beardsley was, so far as the same can be inquired into in this action, legally elected, and was a trustee de jure.
The warrant dated April 8, 1857, was to collect $26.59. Of this sum $10 was voted at the special meeting, February, 1857, for the repairs of the school house, $10 was levied by [42]*42the trustees, they being authorized to levy that sum in each year for repairs, in addition to the sum voted by the district, and the remaining sum was for book case, broom, wood, making fires, and repairs. For none of the latter items, except the wood, were the- trustees authorized to issue their warrant, without a vote of the district. But the insertion of this sum in the warrant does not vitiate it, or render the trustees liable in trespass. (Seaman v. Benson, 4 Barb. 444. Easton v. Calendar, 11 Wend. 90.) The warrant was void for the excess only, and the defendants personally liable in an action to recover back any part of such excess paid or collected. But an action to recover the value of the property sold on the warrant, cannot be sustained.
It is insisted that the second warrant was void because it was the same one used to collect the first assessment. The proof showed it to be the same paper, with the exception that the first assessment had been detached from it, its date altered, the second assessment attached to it, and the warrant thus altered, with the second assessment, delivered ta the collector. I can discover nothing in such proceeding that operates in the least to vitiate the warrant; it was, for all practical purposes, and in legal effect, a new warrant; as much so as if its contents had been copied by the trustees on to a new piece of paper and signed by them.
The next objection is that the tax of $200 voted to build a school house, and the warrant to collect the same, were void, because the vote of the district to change the site of the school house was without the written consent of the supervisor. The statute declares that “ whenever a school house shall have been built or purchased for a district, the site of such school house shall not be changed, nor the building thereon be removed, so long as the district shall remain unaltered, unless by the consent in writing of the supervisor of the town within which such district shall be situate,” &c. (Laws of 1847, ch. 480, § 73. Laws of 1856, ch. 179, § 26.) This consent the plaintiff insists is essential to confer jurisdiction [43]*43upon the district to act upon the question of change, bfo doubt such consent must be obtained before a change can be effected ; but that the consent must first be obtained before the district can vote for a change of site, I deny. Such is not the language of the statute. When the district has no site, the trustees are authorized to fix one, but when a school house shall have been built or purchased, the site shall not be changed without the supervisor’s consent. In such case two things are requisite to effect a change; the consent of the supervisor and the vote of the district; and it makes no difference which has the precedence.
This certificate of the supervisor is only necessary to effect a change of site; it does not relate to levying a tax. The powers of the district to vote a tax for any sum less than $400, for building a school house, is expressly conferred by statute ; and such a tax may be levied and collected before the inhabitants have designated a site for the building. (Benjamin v. Hull, 17 Wend. 439.) In this case the proof showed that the district had a site on which had been a shanty used for school purposes. That the shanty had been torn down; that on the 12th day of May, 1857, the inhabitants got together and voted to change the site of the school house, and that they also, by separate resolution, voted to raise $200, to build a new school house.
At this time the supervisor had not consented to a change of site, but his certificate was subsequently obtained, June 22, 1857, and this, together with the vote of the district, effected the change. The assessment of the $200 tax bears date June 8, and the warrant June 10, 1857, but the levy and sale was not until 1858, under a renewed warrant. (11 Wend. 91. 1 Denio, 221. 4 Barb. 447.)
Whether the resolution to change the site was legal, or subsequently became legal, is a matter of no moment, in the view which I take of this case, even though the district may have voted the tax with the expectation that the new house would be built upon the new site. At the time of the vote [44]*44the district was without any school house; it owned a site on which a new house could be built ;■ it had the right to vote to raise the money; the resolution did not designate where the new house should be built, but simply authorized the raising of money to build a new house, and was not coupled with any other resolution or matter. Therefore the court cannot say that the money was voted for an illegal purpose. In the absence of express words it cannot infer that the tax was voted to be expended on the new site, when there was a legal site on which it might be expended. The case differs', in this particular, from that of Benjamin v. Hull, (17 Wend. 437.) There the resolution required the new house to be built on the site to be procured by the trustees, which right of selection the district had no power to delegate. It also differs from Balcer v. Freeman, (9 Wend. 36.) There the district had consented to change the site without consent, and none was ever procured; they voted a tax of $32 to pay for the new site, which was clearly unauthorized; at a subsequent meeting they voted a tax to build a school house, and the two taxes were included in the one warrant: the court held both taxes void. The court did not pass upon the question whether a subsequent consent would legalize a change of site and the tax; nor did it appear that the district at the time was the owner of another site. It conceded the powers of the district to vote the tax as declared on its face, but it went back of the resolution and assumed the tax was voted for the purpose of building a school house, not upon the old site, but upon the one directed to be purchased, and that that might have affected and probably did affect the vote in that case, and that the district had no power to raise money to build a school house on that site.
The assumption of the court from the facts stated in the case may have been warranted, but whether that was so or not, or whether the legal conclusions based upon that assumption are sound or not, the proof in this case would not justify this court in the assumption that this tax was voted expressly [45]*45to build upon the new site. Whatever suspicions of that kind may prevail they cannot be made the basis of judicial action, unless sustained by proof.
A new trial should be granted; costs "to abide the event.
Rosekrans, J.
The defendants are sued for the taking and converting of the plaintiff's property, which was levied on by a collector of a school district in the town of Dekalb, St. Lawrence county, and sold by him by virtue of a warrant issued to him by the defendants as trustees of said school district. The defendants seek to justify the act as such trustees. It is settled by a long line of authorities, in our own state and in other states, that the acts of officers de facto are valid, so far as the public and third persons are concerned, and. that neither their title to the office nor the validity of "their official acts can be indirectly called in question in proceedings to which they are not parties. To this extent the official acts of an officer de facto are as valid and effectual as though he were an officer de jure. This rule is established for the benefit of the public at large, and those who have an interest in such official acts, but it gives no immunities to the officer de facto himself; nor does it confer upon him any rights, or shield him from any responsibility. When prosecuted for an act done by him as such officer which he would justify under the office, or when he attempts to enforce any legal right which appertains solely to the office, he is bound to show that he is an officer de jure. It is useless to add to the citations made by Mr. Justice Potter to sustain this position.
But in order to show that the defendant is an officer de jure, it is not necessary in the first instance that he should do more than to give evidence that he is reputed to be and has acted as such officer. The rule requiring the best evidence to be given has this exception, which is founded upon the strong presumption that arises from the exercise of a public office, that the appointment to it is valid. The excep[46]*46tion is made for the reason that it would be attended with general inconvenience to require full and strict proof of the appointment or election of public officers. (1 Phil. Ev. ch. 9, Edw. ed., p. 592. 1 Greenl. Ev. §§ 83, 92, and notes.) This rule was adopted in this court in the case of Potter v. Luther, (3 John. 431.) The plaintiff brought an action of trespass de bonis asportatis before a justice of the peace. The defendant pleaded that as one of the deputies of the sheriff of Washington county he took the goods by virtue of a ft. fa., and offered to prove by reputation that he was a general deputy of the sheriff. The justice overruled the evidence, and required that the defendant should produce the appointment by the sheriff. The case was brought into this court, which said: “ It is a general rule to admit proof by reputation that a person acts as a general public officer or deputy.' In Berryman v. Wise (4 T. R. 366) the court of king’s bench in England decided that in case of all peace officers, justices of the peace, constables, &c. it was sufficient to prove that they acted in those characters, without producing their appointments, and that, even in a case of murder.” In McCoy v. Curtice (9 Wend. 17) the action was trover for a watch. The defendant pleaded the general issue, and justified as collector for a school district. He produced a warrant signed by the trustees, and proved by parol that the persons who signed the warrant were reputed to be and acted as trustees, and also proved that he (the defendant) had acted as collector of the district. This parol evidence was objected to when offered, and the objection was overruled. The jury found a verdict for the defendant; and on error brought to this court, Sutherland, J., delivering the opinion of the court, said : “ It is a general rule in relation to all public officers, that they may establish their official character by proving that they are generally reputed to be and have acted as such officers, without producing their commission or other evidence of their appointment. This is well established as to all peace officers, sheriffs, constables, justices of the [47]*47peace,” &c.; and he cites 4 John. 366; Potter v. Luther, 3 id. 431; 6 Binn. 88 ; 9 Mass. Rep. 231; 7 John. 549; 9 id. 125; 12 id. 296; Wilcox v. Smith, 5 Wend. 231.
It is true that many of these cases merely established the doctrine that the evidence is competent to prove the official character of officers under whose process the party offering the evidence is seeking to justify his own acts; but the court held, distinctly, that the parol evidence of the official character of the collector himself was competent. The same doctrine was held in Sawyer v. Steele, (3 Wash. C. C. R. 464.) In Doe ex dem. Bowley et al. v. Barnes, (8 Q. B. 1037, 56 E. C. L. R.,) the plaintiffs brought ejectment as church wardens and overseers of the poor of the parish of Nether Broughton, and gave parol evidence that they were the officers they claimed to be. The defendant objected that their appointment ought to be proved, and that it was not sufficient for the purpose of the action to show that they were acting as church wardens or overseers, at the time of the demise. The plaintiffs had a verdict, with leave to the defendant to move for a nonsuit, and on argument of the motion, the court held, Patterson, J., as follows: “ It is a recognized principle that a person acting in the capacity of a public officer is prima facie taken to be so. The fact of itself does not prove any title, but only that the person fills the office.” The rule for leave to move for a nonsuit was discharged. In Butler v. Ford, (1 Cr. & M. 662; S. C., Tyr. 677,) Lord Lyndhurst, C. B.,. said: “As to the question whether the defendants had proved themselves to be constables and watchmen under a local act, I think it was sufficient to prove that they acted in those characters. Evidence of this nature is evidence that they were duly appointed. It is not conclusive, but quite sufficient as a prima facie case.” And Bailey, J. expressed the same opinion. In McGahey v. Alston, (2 Mees. & Wels. 206,) the plaintiff sued as vestry clerk, and the defendant pleaded that he was not vestry clerk. The point was expressly taken that the plaintiff's right to sue depended on [48]*48his being vestry clerk, and that unless he was legally placed in that office he must fail in that action. But the objection was overruled, and Parker, baron, said: “ The plaintiff is a public parochial officer, and the rule is that all public officers who are proved to have acted as suclí are presumed to have been duly appointed, until the contrary is shown.” The uniform practice of the court in like cases has been to admit proof that officers have been reputed to be and haye acted as such, in cases where they have been sued for their official acts, and have sought to justify their acts as incumbents of the offices. Indeed, I have never known a case where other evidence of official appointment or election has been required. For these reasons I think that the judge at the circuit erred in excluding parol evidence that the defendants, at the time they signed the warrants, were acting as trustees of school district No. 17, De Kalb, and that the exception to such ruling was well taken. The defendants subsequently gave in evidence the proceedings of the district meeting on the 19th February, 1857, showing that at that meeting the defendant Beardsley was appointed trustee in the place of the plaintiff, and that the defendant Bigelow was appointed trustee in the place of Warden Stammer. They also proved by parol that the defendant Spooner had acted as trustee of the district since the annual meeting of the district in 1856; that all of the defendants had acted as trustees of the district since February 19, 1857; and that neither the plaintiff nor any other person had acted as such since that time. This last evidence was objected to by the plaintiff as incompetent and immaterial, and it was insisted that the defendants must show themselves officers de jure: The judge reserved the
objection and received the evidence, subject to it. At a subsequent stage of the cause the judge was requested to nonsuit the plaintiff, on the ground that the defendants had made out a complete justification; that it appeared they were acting as trustees de facto, if not de jure; that there did not appear to be any irregularity in their proceedings; and that [49]*49the defendants were authorized to issue the warrants under which the plaintiff’s property was sold. This motion was denied; and the judge held that it was not sufficient for the defendants to prove that they were trustees de facto merely, but that they must prove they were trustees de jure; that for that reason neither of the warrants issued by them afforded them a protection, and that the only question necessary for the jury to consider under his ruling was the value of the plaintiff’s property sold under the warrants. These rulings were severally excepted to by the defendants, and the judge was requested to charge the jury that if they were satisfied from the evidence that the defendants were trustees de facto, their acts were binding on the plaintiff. This request was refused, and the refusal was excepted to.
I am clearly of the opinion that the learned judge erred in denying the motion to nonsuit the plaintiff, upon the ground on which it was claimed : 1st. That the defendants had made out a complete justification; and 2d. That it appeared that the defendants were authorized to issue the warrants under which the plaintiff’s property was sold. And I think also that the other ground, to wit, “ that it Appeared that the defendants were acting as trustees defacto, if not de jure,” was improperly overruled. The decision in effect excluded or disregarded the evidence that the defendants acted as trustees of the district after February 19, 1857, and denied to the defendants the legitimate force of that evidence. Within the principles laid down in the authorities cited, this evidence was prima facie evidence of the fact that the defendants were trustees de jure of the district when they issued the warrant under which the plaintiff’s property was taken; and this prima facie case was not overcome by any evidence given on the part of the plaintiff. It was not directly proved that Colton was ever a trustee. It must be inferred from the evidence, that at some time prior to February 19, 1857, he had been elected a trustee. The minutes of the meeting of that date state that the defendant Beardsley was appointed [50]*50trustee in the place of Colton, and one witness testified that “ Colton’s time had not expired.” This last expression could only mean that the time for which he was elected, if he had been elected, had not expired. But the same witness added that the plaintiff did not act or do any business as trustee for some time before that meeting, and there is no evidence in the case that he ever did act as trustee. Besides, the notice of the meeting of February 19, 1857, was to fill a vacancy in the office of trustee, and the minutes showed that the vacancy was in the office to which Colton was elected. To rebut the prima facie case made out by the defendants, that they were trustees de jure, by proof that they acted as such trustees, it was necessary that the plaintiff should have proved his election and acceptance of the office, either by the record or by his acts. The onus was cast upon him by the prima facie case made by the defendants to overcome this evidence by counter proof. He did not show his acceptance of the office, if he was ever elected; or that he did not refuse to accept the office;' or that he did not refuse to serve; or if he accepted the office, that he had not resigned it; or that he had not become incapacitated to serve as trustee. A vacancy in his office could have occurred by either of these circumstances, and a vacancy can occur by the removal of a trustee from office for willful neglect of duty, (1 R. S. 5th ed. 897, § 114. Id. 889, § 71.) Ho presumption could be indulged that the trustees, or the district, had acted illegally in their proceedings to fill a vacancy in the plaintiff’s office. The plaintiff was hound to show that he was trustee de jure, in order to overcome the case made by the defendants. The evidence showed that Beardsley was trustee de jure, and the plaintiff was not. These considerations would seem to be sufficient to reverse the judgment and to require a new trial. It may be that on another trial the plaintiff will be able to prove his election as trustee, his acceptance of the office, and that he had not resigned the office or become incapable of acting as trustee; that he continued to reside in the district, [51]*51and that he had not heen removed from his office. And it may he for the interest of the parties that we should consider the case in the light of such evidence. I have no doubt that if such evidence shall be given, the plaintiff cannot recover in this action. The statute has made it the duty of the trustees of school districts, and conferred upon them the power, to call special meetings of the inhabitants of the district liable to pay taxes, whenever they shall deem it necessary and proper. (1 R. S. 5th ed. 898, § 119, sub. 1.) A clerk of the district is required to give notice of special meetings when the same shall be called by the trustees. (Id, § 118, sub. 2.) A special meeting is required to be held in each district whenever called by the trustees, (Id. 895;) and the inhabitants, when lawfully assembled at any district meeting, have power to choose a trustee as often as the office of trustee is vacant. (Id. 894, § 99, sub. 3.) Under these provisions of the statute, the question whether there is a vacancy in the office of any trustee must be determined in limine by the other trustees. It is a question calling for the exercise of their judgment and discretion, and their action upon it partakes of the character of a judicial act. And it is of the essence and nature of such acts, whether the power to perform them is committed to a court or a body of men or to an individual, that they are final and conclusive, except in a direct proceeding for their reversal; and that they cannot be inquired into or questioned collaterally. When the jurisdiction of an inferior tribunal depends upon a fact which such tribunal is required to ascertain and determine by its decision, such decision is final until reversed in a direct proceeding for that purpose. (Brittain v. Kennard, 1 Brod. & Bing. 432; S. C., 4 Moore, 50. 12 Pick. 572, 582, 583. Ex parte Watkins, 3 Peters, 202, 209. Supervisors of Onondaga Co. v. Briggs, 2 Denio, 33, 34. 11 Wend. 95. Phil. Ev. ch. 1, § 5, note 293. 2 id., Edw. ed., 15 and fol. Weaver v. Devendorf, 3 Denio, 117, 120, and authorities cited. Broom’s Leg. Max. 56 to 66. Henderson v. Brown, [52]*521 Caines, 90, Kent and Livingston, Js.) The test of jurisdiction in such cases is, whether the tribunal has power to enter upon the inquiry, and not whether its conclusions in the course of it were right or wrong. (1 Q. B. Rep. 66. Reg. v. Bolton, 41 Eng. C. L. Rep. 439. Cave v. Mountain, 1 Man. & Gr. 257; 39 Eng. C. L. Rep. 432.)
An act of congress passed February 28, 1795, (1 Stat. at Large, 424,) “ provided that whenever the United States shall he invaded or he in imminent danger of invasion from any foreign nation' or Indian tribe, it shall be lawful for the president of the United States to call forth such number of the militia of the state or states most convenient to the place' of danger or scene of action as he may judge necessary to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he shall think proper.” Under this act the president made his requisition upon the state of New York for a portion of her militia. One Mott was summoned to service under this requisition and failed to comply, and was tided by a court martial and fined, and his property was seized to satisfy the fine. He brought replevin in this court, and the defendant justified under the requisition of the president and the proceedings under it. The supreme court gave judgment against the defendant, and the court for the correction of errors affirmed it. The case was removed to the supreme court of the United States, and that court held unanimously (Martin v. Mott, 12 Wheat. 19, 31) that the authority to decide whether the exigency had arisen belonged exclusively to the president, and that his decision was conclusive upon all other persons; that whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts. The case of Vanderheyden v. Young (11 John. 150) arose under the same act of congress, and was similar in its features to those of Martin v. Mott, (supra.) And in that case Spencer, J. [53]*53says: “ It is a general and sound principle that whenever the law vests any person with the power to do an act and constitutes him a judge of the evidence on which the act may be done, and at the same time contemplates that the act- is to be carried into effect through the instrumentality of agents, the person thus clothed with power is invested with discretion, and is, quo ad hoc, a judge. His mandates to his legal agents on his declaring the event to have happened, will be a protection to those agents; and it is not their duty or business to investigate the facts thus referred to their superior, and to rejudge his determination.” In Jenkins v. Waldron (11 John. 114) it was held that officers required by law to exercise their judgment are not answerable for ■ mistakes in law, or mere errors in judgment, without fraud or malice. The case of Wood v. Peake (8 id. 69) is somewhat analogous to the one under consideration, and contains a principle which I think establishes a sure defense in this action. The sixth section of chapter 78, laws of 1801, provided that “ if any constable chosen &c. shall refuse to serve, it shall he lawful for the inhabitants of the town to supply such vacancy at a special meeting to be notified and held, &c., and that if the town shall not within 15 days next after such refusal choose another, it shall be lawful for any three justices of the peace residing in or near such towns, and they are required, by warrant under their hands and seals, to appoint every such officer which the town ought to have,” &c. Peake sued Wood in the Montgomery common pleas in trespass for taking his property, and Wood justified under an execution issued by a justice of the peace and an appointment of himself as constable under this act, by three justices, which stated that Jonathan Lawrence, one of the constables of the town, had for more than 15 days past refused to serve in his office, and the town not having appointed one in the room or stead of Lawrence, that therefore the three justices appointed (the defendant) Wood a constable. The plaintiff proved the election of Lawrence as a constable, and offered to prove that [54]*54Lawrence never did refuse to serve as constable, nor was he unable to serve, but that he actually did serve as constable three days after the date of Wood’s appointment, and three months 'afterward. This evidence was objected to, but was admitted, and upon it the plaintiff had judgment, which on • error to this court was reversed. The cause was argued in the supreme court by two of the most distinguished counsel in the state—the late lamented Daniel Cady, afterwards one of the justices of this court, and Abraham Van Vechten. It was insisted for the plaintiff in error that the appointment by the three justices was a judicial act, and being in a case in which they had jurisdiction, it was conclusive; that the act of the justices could only be corrected by a direct proceeding for that purpose; and that the common pleas had no right to decide upon the validity of the appointment. For the defendant in error it was insisted that the power given to the justices was special, and must be strictly pursued; that it could only be exercised in case an officer chosen should refuse to serve, and that it appeared in the case that Lawrence had not refused to serve; that the justices therefore had no authority or jurisdiction, and the appointment was void. The court made use of this language : “ This appointment was a judicial act) for the justices must first determine and adjudge that there is a vacancy in the office, and that the town neglected to fill it. It is not traversable in such a collateral action. The appointment remains valid until it be set aside or quashed in the regular course, upon certiorari. It is certainly sufficient to justify the constable. He comes to the office by an appointment, regular according to the forms of law, and made by a tribunal having jurisdiction in the case; and he is bound to accept under a penalty. He is not to inquire at his peril into the validity of the act. It is sufficient that these justices have authority to make such an appointment in the given case.” Although the defendant in that case was a ministerial officer, and the court say, “ the appointment was clearly sufficient to justify the constable,” [55]*55yet the case is not decided upon the character of the officer, but upon that of the act by which he held his office. The court say the appointment was a judicial act. This term is used by way of accommodation.. Perhaps it would have been as well to have said that the making of the appointment was in the nature of a judicial act, as it called for the exercise of judgment and discretion.
The power was not exercised by the justices in their capacity of judges or as a court. (Rice v. Parkman, Parker, J., 16 Mass. R. 330.) It might have been delegated to a clerk of the court, had the legislature seen fit, and within fifteen days after the vacancy in the constable’s office. It Was delegated to the inhabitants of the town. The power did not call for any decision between parties to an action; nor did it require the entry of any judgment upon the facts; but as it required the exercise of judgment and discretion and the determination and decision of a question of fact, the nature of the power was quasi judicial, and when exercised the decision was final, and conclusive until reversed in a direct proceeding for that purpose, and could hot be questioned eoU laterally.' ( Van Wormer v. Mayor of Albany, 15 Wend. 262.) The effect is the same, upon whomsoever such a power is conferred, whether it be the president of the United States, justices of the peace, the inhabitants of a town or school district, or the trustees of a school district. The case of Wood v. Peake (supra) is cited with approval in Green v. Burke, (23 Wend. 502, 3,) by Oowen, J. He says, “though the place (constable’s office) being full was a jurisdictional objection, yet the question was one on which the justices had power to pass judicially. There are many such cases.” Applying this principle to the case before us, it is clear that the determination of the trustees that there was a vacancy in the office, and their act in calling a special meeting of the inhabitants of the district to fill the vacancy, and the act of the special meeting in filling it, were final and. conclusive, and not to be questioned collaterally. I lay out of the case, entirely, the fact that the [56]*56plaintiff was present at the special meeting and then said by his silence that his office was vacant. It is unnecessary to inquire whether his acts do not amount to an estoppel to his alleging that his office was not then vacant; although my impression is that it should have that effect. The case of Cummings v. Clark, (15 Verm. Rep. 653,) cited by Hr. Justice Potter, is not analogous to this case, and if it were, I think the doctrine of the other cases to which I have referred, which hold the determination of the trustees conclusive that the office of their co-trustee was vacant, is to be preferred. In that case the defendant justified in trespass under a warrant to collect a highway tax. He had been appointed to fill an office for the reason that the incumbent had refused to act, and'Eedfield, J. said: “The refusal to act is not ipso facto vacating an office. There is nobody to exercise a judicial discretion on that subject, to declare the office vacant. The statute under which the defendants in the case acted, (1 R. S. 897, § 114, 5th ed.,) declares that a vacancy in the office of trustee may be occasioned by the death of a trustee, his refusal to serve, his removal out of the district, &c. Perhaps the legislature intended that the refusal to serve should mean a refusal to accept the office; but how a vacancy can be filled in any case by the district or town superintendent, or how the remaining trustees can call a special meeting of the inhabitants of the district to fill a vacancy, without first determining whether a vacancy has occurred, is beyond my comprehension. The case of Wood v. Peake (supra) was cited in Van Orsdall v. Hazard, (3 Hill, 249,) by Oowen, J. He says of it, “that it looks strongly in the direction of holding that the appointment by the justices was a judicial act, and if correct in principle the appointment is conclusive.” He adds: “I confess the exercise of the power to appoint in a given case has always appeared to me rather an act 6f ministerial or executive than judicial power.” This may be conceded to be correct, that the appointment to office is a ministerial or executive act; [57]*57but it must be remembered that the determination that there is a vacancy in the office necessarily precedes the act of appointment, and that decision involves the exercise of judgment and discretion. The decision is final and cannot be inquired into collaterally; and all action founded upon it must necessarily be of the same nature.
The other questions arising in the case have been considered by my brethren, and I concur in their views in relation to them. For the reasons stated, I think the judgment should be reversed and a new trial granted, with costs to abide the event.