Fancher v. Stearns

61 Vt. 616

• Court: Supreme Court of Vermont
• Decided: August 15, 1889
• Status: Published

Opinion

The opinion of the court was delivered by

Powers, J.

Public office is a public trust. The public generally is interested in the administration of this trust and has the •right to assume that persons in possession of an office under the forms of law and holding commissions attesting their title thereto =are in fact as they are in form de jure officers. To prevent the •endless confusion and irreparable injuries that would otherwise follow, the doctrine, that officers coming into the , possession of "their offices under the forms of law and assuming to act Tinder a proper commission issued by the proper elective or appointing power are de facto officers whose acts are binding upon third persons, even though upon quo warranto proceedings their title would be found fatally defective, has been firmly established in this country and in England. See State v. Cornwall, 38 Conn. 471, for a learned and exhaustive discussion of this doctrine, also, McGregor v. Balch, 14 Vt. 428; Norwich v. Farington, 20 Vt. 473; Lyndon v. Miller, 36 Vt. 329.

It is also firmly established that in. the proceedings between third parties no proof is admissible upon the question whether the officer has a valid title to his office.

His commission coupled with his possession is conclusive of his right in all cases where he is not a party. And this is true-whether he be ineligible to or incapable of holding the office. Peoples. Dean, 3 Wend. 136; McGregor v. Balch, supra v. Norwich v. Yarington, supra; Norton v. Shelby Co., 118 U. S. 125; 5 Wait’s Actions and Defences.

The agreed statement of facts was made subject to' the legal-objection that proof could not be received to question Justice Monteith’s title to his office.

We hold, therefore, that Mr. Monteith was a justice de facto• whose acts as a justice in the case were as valid as though he-were a justice de jure.

The judgment is reversed arid the case is remanded.