Holman v. Lutz , 132 Or. 185 ( 1929 )

I concur in the conclusion of Mr. Justice Rand. I cannot concur with the reasons he gives for the decision. It is my opinion that the validity of the decree and decision of this court cannot be determined or questioned as defendants attempt to do in their motion to recall the mandate. No one would claim that the motion and brief supporting the motion has anything to do with the merits of the case. The authorities are general, uniform and universal that the validity of the acts of an officer while acting under color of authority cannot be questioned by attacking the right of the officer to hold the office. The question is now presented upon a motion to recall the mandate after the case has been determined upon its merits and a petition for rehearing denied.

Judge Hamilton wrote the opinion for the court. The court rendered the decision and made the decree, not Judge Hamilton. Judge Hamilton has been a circuit judge continuously, serving the Second district of the state of Oregon in that capacity, since the first Monday in July, 1898. Judge Hamilton is here by virtue of chapter 338, Laws of 1921, which provides among other things:

"Whenever the business of the supreme court is congested and any judge of that court is by reason of illness, or other good cause, unable to bear his part of the work of said court, the supreme court may designate or select any judge of the circuit court of this state to sit temporarily as a member of the supreme court during the absence or inability of a judge of such court and while the work of the court may reasonably require the assistance of such circuit judge."

Mr. Justice George M. Brown is absent on account of sickness. Judge James W. Hamilton was called to sit as a member of this court on account of the necessary absence of Mr. Justice George M. Brown. There is, therefore, a color of title vested in Judge Hamilton. He is at least an officer de facto.

This same question was raised in re Ah Lee, (D.C.) 5 Fed. 899, in a petition for writ of habeas corpus. It was very ably presented by learned attorneys. Honorable M.P. Deady, who was present at the convention which framed the constitution of the state of Oregon, wrote an elaborate opinion. In page 907 [of 5 Fed.] is this language:

"In considering this case I have not found it necessary to pass upon the constitutionality of the act of October 17, 1878, or the validity of the appointments thereunder; for although the actmay be unconstitutional, and the appointments illegal, still ifthe persons appointed were judges de facto, their acts, as tothird persons, are valid, and the petitioner is not restrained without due process of law. * * * The persons appointed as judges under this act, although its unconstitutionality be admitted, and that therefore they are not judges de jure or of right, are nevertheless, acting as judges of constitutionally created and existing courts, having jurisdiction to try, hear, and determine the criminal action in which the petitioner has been convicted of murder, and sentenced to receive the punishment of death when and as it took place, both in the court below and upon appeal. A person actually in office by color of right or title — not a mere usurper or intruder — although not legally appointed or elected thereto, or qualified to hold the same, is still an officer de facto, or in fact, and, as a matter of public convenience and utility, his acts, while so in office, are held valid and binding as to third persons."

The quotation is taken from a decision on a petition for writ of habeas corpus. The petitioner questioned the constitutionality of the act separating the circuit and supreme courts of this state. The learned court in the case held that the court had jurisdiction of the petition since the contention was that the petitioner, Ah Lee, had been convicted of murder in the first degree contrary to due process of law. The facts are similar to a degree to the facts in the instant case.

46 C.J., 1057, § 371: "One who holds an office under an appointment or election giving color of title may be a de facto officer, although the appointment or election is irregular, or invalid, or although he has been appointed by an authority not competent under the law to make the appointment, and even thoughhis title is derived from an unconstitutional statute." (Italics ours.)

Again in 46 C.J., 1006, § 213, we read: "Title to public office can not be attacked collaterally. The question of the status of an incumbent of an office or one returned as elected can only be determined in a direct proceeding brought for that purpose, to which he is a party."

Again in page 1060, § 378, of the same text we find: "The acts of an officer de facto are as valid and effectual where they concern the public or the rights of third persons, until his title to the office is judged insufficient, as though he were an officer de jure, and the legality of the acts of such an officer cannot be collaterally attacked in a proceeding to which he is not a party."

This last citation is supported by a long list of authorities, and I believe is not questioned by any respectable authority.

This court announced in Hamlin v. Kassafer, 15 Or. 456,458-460 (15 P. 778, 3 Am. St. Rep. 176).

"To constitute a person an officer de facto, he must be in the actual possession of the office, and in the exercise of its functions and in the discharge of its duties. * * * `An officerde facto,' said Storrs, J., `is one who exercises the duties of an office, under color of an appointment or election to that office. He differs, on the one hand, from a mere usurper of an office, who undertakes to act as an officer without any color of right; and on the other hand, from an officer de jure, who is, in all respects, legally appointed and qualified to exercise the office. It is not in all cases easy to determine what ought to be considered as constituting a colorable right to an office, so as to determine whether one is a mere usurper." (Plymouth v.Painter, 17 Conn. 588, 44 Am. Dec. 574.)__ The distinction, then, which the law recognizes, is that an officer de jure is one who has the lawful right or title, without the possession of the office, while an officer de facto has the possession and performs the duties under the color of right, without being actually qualified in law so to act, both being distinguished from the mere usurper, who has neither lawful title nor color of right. * * * It may be said, then, that the color of right which constitutes one an officer de facto, may consist in an election or appointment, or in holding over after the expiration of one's term, or acquiescence by the public in the acts of such officer for such a length of time as to raise the presumption of colorable right by election or appointment.

"From considerations of public policy, the law recognizes the official acts of such officers as lawful to a certain extent. It will not allow them to be questioned collaterally, and they are valid as to the public, and as to third persons who have an interest in the thing done. (Authorities cited.) Within the scope of his authority, the acts of an officer de jure are valid for all purposes. Not so with an officer de facto; his acts are only recognized in the law to be valid and effectual so far as they affect the public and third persons. As to these, his acts are as valid as if he were an officer de jure. * * * Besides,it is against the policy of the law to allow a suit betweenprivate individuals to determine the title to an office. Such judgment could only bind the parties, and would be of no effect as against the public."

Again in Ex Parte Douros, 97 Or. 39, 41, 43 (191 P. 319), we read:

"The only question upon which the court below tried the case was whether or not John Philip was a justice of the peace and clothed with the powers and duties of that office.

"Assuming that Philip was not a justice of the peace de jure, the record is conclusive that he was de facto. The distinction is clearly defined in Hamlin v. Kassafer, 15 Or. 456 (15 P. 778, 3 Am. St. Rep. 176), where it is said:". Then follows an excerpt from the case cited.

12 R.C.L. 1203, § 21, states the principle thus: "It is the well settled general rule that on habeas corpus it may be shown that the court under whose judgment or order the prisoner is deprived of his liberty had no legal existence, for if there wasno lawful court the pretended trial and judgment were absolutelyvoid. It is generally held, however, that this rule has no application to the case of the de facto judges, and that a person convicted by a judge de facto, acting under color of office, though not de jure, and detained in custody in pursuance of his sentence, cannot be properly discharged upon habeas corpus."

"A person is a de facto officer where the duties of the office are exercised: * * * Fourth. Under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such": 22 R.C.L. 588, § 306.

"If an office exists de jure the courts are uniform in asserting that the standing of the incumbent as a de facto officer is not impaired by the fact that the statute directing the manner in which it is to be filled is unconstitutional. Public policy requires that the acts done by persons exercising official functions, by virtue of legislative authority, which is subsequently declared void, should nevertheless be upheld." (Italics ours.) 22 R.C.L. 590, § 310. See also §§ 307-309 of same text.

We know that the supreme court and circuit courts are de jure offices in this state. We know that in the absence of a justice of the supreme court the statute prescribes that the supreme court may select a circuit judge to sit temporarily as a member of the supreme court while the work of the supreme court may reasonably require the assistance of such circuit judge. That statute has never been declared unconstitutional. Judge Hamilton is sitting therefore in the supreme court under color of title and is in any event a de facto officer.

Plaintiffs should have objected to Judge Hamilton sitting if they desired to raise a question as to his right to participate in the decision of their case. They could have done that before the case was argued and submitted to this court. If there had been any doubt, then, in the mind of Judge Hamilton or of the members of the court, he could have retired and the six justices could and would have heard and decided the case. Plaintiffs preferred to submit their case to the court, including Circuit Judge Hamilton. Having done so and lost, they should not now be heard to say that Judge Hamilton was not competent to sit in their case. Both authorities and reason are against the position assumed by plaintiffs in their motion to recall the mandate. The motion is denied.