Keeler v. City of Newbern

61 N.C. 505

• Court: Supreme Court of North Carolina
• Decided: January 5, 1868
• Status: Published

Opinion

Reade J.

There seems to be no force in the defendant’s first exception: that the existence of the corporation could only be shown by the act of incorporation; because “it was admitted that the city was incorporated, and that the charter and laws required the Mayor and Commissioners to be ■elected.” This admission dispensed with the production of the charter.

The second exception : that the persons with whom the defendant contracted were never elected to office, and never-installed into office, and were mere intruders, — is well taken. There are many cases where the acts of de facto officers acting under color of authority are valid, and, in such cases, their regular induction into office is presumed; but certainly there can be no such presumption in this case against the admitted fact that they had never held office before, and were never elected to office, and that the charter requires an election. Against these admissions there can be no presumption and therefore it follows that they were mere intruders or usurpers, and had no authority to bind the city.

There is no error. Let this be certified, &c.

Per Curiam. Judgment affirmed.