Joseph v. Cawthorn , 74 Ala. 411 ( 1883 )

SOMEBVILLE, J.

— We are clearly of opinion, that there is nothing to be found in the provisions of the special act of the General Assembly, entitled “An act to regulate the holding of the Circuit Courts of Barbour county,” approved February 12, 1879, which dispenses with the necessity of an official oath being taken by the deputy circuit clerk, authorized to be appointed by that act. — Acts 1878-79. pp. 106,109. The general law provides, that deputy-clerks must take an official oath to support the constitution and laws of the State, before they proceed to act.' — -Code, 1876, §§ 161, 676, sub-div. 2. This is in accordance with the State Constitution, that an official oath shall be taken by all officers of the three several departments of government. As said in Chappell v. The State, 71 Ala. 324, “ every instrumentality connected with the administration of the law, is required to be oath-bound. Such has been the law as far back as our knowledge of English jurisprudence extends.” So strict is the policy of the law in this particular, that it is made a misdemeanor in this State for “ any officer or deputy,” who is required to take and file an oath of office, to enter upon the duties of his office without first doing so. — Code, 1876, § 4160.

This is the positive exaction of the general law. The special law in question is silent on the subject of oaths. The former includes all deputies. The latter fails to exempt the particular deputy, authorized to be appointed under its provisions. There is, therefore, no repugnancy between them. The point must be conceded to be well taken, that the deputy-clerk, who issued the attachment in question, was required by statute to take an official oath before entering upon the duties of his office.

But it is an error to suppose that his failure to take such oath vitiated the issue of the writ of attachment, or authorized its abatement. The deputy-clerk was an officer defacto, beyond all question. The clerk was empowered to appoint him to the office, with full authority vested in him by law to exercise all the powers vested in the clerk himself. The appointment was made, and the deputy was in the daily exercise of his official duties, under color and claim of his office. It has frequently been decided, and it is clear upon principle, that the failure of an officer to.conform to some statutory condition, or constitutional requirement, such as taking an oath, giving bond, or the like, does not remove his de-facto character, where he is acting under color of a known ana valid appointment or election. — State v. Carroll (38 Conn. 449), 9 Amer. Rep. 409.

There is no distinction in law between the official acts of an officer cle fire, and those of an officer defacto. So far as the public and third persons are concerned, the acts of the one have precisely the same force and effect as the acts of the other. The only difference between the two is, that the latter may be ousted from his office by a direct proceeding against him in the nature of quo warranto, and the former can not. Their official acts are equally valid. The rule is one which is dictated alike by principles of justice and public policy. It would be a great hardship, if innocent persons were made to suffer by the unknown negligence of officials, who, under color of office, were daily holding themselves out to the public as officers de jure. People v. Staton (73 N. C. 546), 21 Amer. Rep. 479; Heath v. The State, 36 Ala. 273 ; Mayo v. Stoneum, 2 Ala. 390; Masterson v. Matthews, 60 Ala. 260; Sheehan’s case (122 Mass. 445), 23 Amer. Rep. 374; Freeman on Judg. (3d Ed.) § 604; United States v. Insurance Co., 22 Wall. 99.

It is manifest, under the foregoing principles and authorities, that the attachment proceedings were in no wise affected by the ' failure of the deputy-clerk to take the oath of office, and they were not subject to abatement by plea on this account. If this officer had been a mere usurper, acting without any color of authority, his acts might be void, and such a plea probably be held good. The case of Lowry v. Stowe, 7 Port. 483, does not .go further than this.

The judgment is reversed, and the cause remanded.