Daniel McGregor v. Calvin Balch and Calvin Balch, Jr., 14 Vt. 428

The opinion of the court was delivered by Williams, Ch. J. The question is whether this suit should be dismissed on account of the alleged constitutional ineligibility of the justice to exercise a judicial office. The constitution declares “ that no person, holding any ,£ office of profit or trust under the authority of congress, ‘ shall be eligible to any appointment in the legislature, or of ‘ holding any executive or judiciary office under this state.” In the first place, we have no doubt that the office of postmaster is an office both of profit and trust, under the authority of congress.

The office itself is created by act of congress, and all the regulations in relation thereto, are made and established under the same authority. So that the question is so far divested of the doubt which has been sometimes entertained, whether other offices under the general government, for which no act or proceedings of congress were made or required, are or are not within the spirit or letter of the prohibition created by the constitution.

Neither can there be any doubt that a justice of the peace is a £ judiciary officer.’ Most of his powers and duties are of a judicial nature and concern the administration of justice. From these considerations it would result that any one was incapable of holding both these offices at the same time. There is, however, a marked distinction in the terms made use of, in relation to appointments in the legislature, and to executive or judicial offices. In the one case such person is declared to be ineligible to any appointment in the legislature.

Hence, if.appointed to the legislature, while holding an office under the authority of congress, the appointment has uniformly been vacated.

But the change of the phraseology, ‘or of holding any executive or judiciary office,’ necessarily creates this obvious difference ; — that such person may be eligible, or may be elected, to an executive or judicial office, but, in such case, if he accept the office under the authority of the state, he must abandon the one held under the authority of congress, and if he continues to hold the latter, he cannot, consistently with the provisions of the constitution, hold the former. The practical construction of this clause of the constitution has been to this effect.

Whenever a person, holding such office under the authority of congress, has been elected to the legislature, his election has been declared void whenever the subject has been brought to their notice. On the contrary, both the people and the legislature have elected persons holding such offices, both to executive and judicial offices, repeatedly, considering them as eligible to such appointment, though incapable of holding and exercising both at the same time.

On this part of the case, we are all of opinion that Morrill could not, consistently with the requirements of the constitution, hold and exercise the offices of postmaster and justice of the peace at the same time. And although he might be eligible to the latter office, yet he must abandon the former, and could not hold them both.

It will follow, from this, that, either on a quo warranto, or in any suit to which Morrill was a party, where he attempted to act, or to justify his acts, by virtue of and under his commission as a justice of the peace, it might be replied that he was incapable of holding that office, and, as to him, he would be treated as having no authority whatever to act, or justify his acts, as such justice, while he held the office of postmaster under the authority of congress.

But a more important question still remains to be considered in this case, that is, whether, in this suit, between other persons, and to which he is not a party, his acts and authority can be called in question and decided. The distinction between an officer, de jure, and de facto, is well known and well established, and the consequences naturally arising from the distinction are equally well settled. An officer, de jure, is clothed with all the power and authority appertaining to the office, and neither his doings nor his acts, within the limits of his authority, can be questioned any where.

The acts of an officer, de facto, are, as it respects third persons, valid; as it respects himself, invalid. An officer, de facto, is one who comes in by the forms of an election, but, in consequence of some informality, or want of qualification, is incapable of holding the office. Until, therefore, the appointment is vacated, his acts must be considered as valid. This subject was fully considered in the cases of The People v. Collins, 7 Johns. 549, M’Instry v. Fanner, 9 Johns. 135, Fowler v. Beebe, 9 Mass. 231, Commonwealth v. Fowler, 10 Mass. 291, and Bucknam v. Ruggles, 15 Mass. 180.

In the cases from the 9th and 10th of Massachusetts Reports, above cited, certain officers were appointed and commissioned for a county before the county had any legal existence ; and it would seem, if any thing would render such appointment wholly void and conveying no authority, those were cases demanding a decision to that effect, yet the appointments were considered.as making them officers, de facto, and their acts good as it respects third persons. The principle of these cases governed the case of Adams v. Jackson, 2 Aik. 145. Yet, in the case of Colburn v.

Ellis et al. 5 Mass. 427, an officer who was not sworn, could not justify in an action brought against him, and, in the case of Commonwealth v. Fowler, the office of the defendant was vacated on a quo warranto.

Postmasters, and persons holding other offices under the authority of congress, have been elected as members of the legislature, and have taken their seats and voted, as such, until their seats were vacated; yet, no one would presume to say that an appointment made by the votes of such members, or a law passed by them, even though it should appear that their votes made the majority in the appointments, or passing the law, should be inquired into, or declared void, on that account. It is said that these defendants have presented the question as soon as their rights were invaded by the acts of this justice.

This is true if they have the right which they contend for. But if Morrill was a justice, duly appointed, and acted as such, the plaintiff might well bring this suit before him, not knowing of his holding an office incompatible with the office of justice, which he exercised, and there would be no more propriety in saying the suit should fail on that account, because the defendant in this suit brought his appointment in question, than in saying the reverse.

There was nothing particularly affecting the interest of this defendant in being sued before this justice, nor should he be permitted to inquire whether Morrill rightfully held the office, in any suit to which the justice was not a party. If this suit should be abated or dismissed on account of the objections raised against the justice, it will follow, as a necessary result, and one which cannot be avoided, that every act of a judicial officer similarly situated is void.

The taking confessions of debt, acknowledgments of deeds, or solemnizing matrimony, or any and every act of that nature, are invalid and void, unless they are recognized as the acts of an officer defacto.

The conclusion, therefore, to which we arrive is this; that Morrill was eligible to the appointment of a justice of the peace, notwithstanding he was a postmaster, but that he could not hold both offices at the same time, and if he had resigned his office of postmaster, when he qualified and assumed to act as justice, he would have been a justice of the peace de jure, that if he held the office of postmaster while he acted as justice, he could not have justified under the latter appointment in a suit brought against him directly, rhat, on a quo warranto, he would have been removed from the latter office.

But, in a suit to which he was not a party, between third persons, he is to be considered as an officer defacto, and his eligibility cannot be tried in such suit; and, as a result of the whole, we think the plea to the jurisdiction cannot be sustained. The judgment of the county court is, therefore, reversed, and judgment entered that the defendant’s plea is insufficient, and that he answer over.