of election who are such de facto only, so far as they affect third persons and the public, is nowhere questioned. The doctrine that whole communities of electors may be disfranchised for the time being, and a minority candidate forced into an office, because one or more of the judges of election have not been duly sworn, or were not duly chosen, or do not possess all the qualifications requisite for the office, finds no support in the decisions of our judicial tribunals. We here refer to some of the leading cases. In People vs. Cook, (4 Selden,) the Court says:

“The neglect of the officers of the election to take any oath would not have vitiated the election. It might have subjected those officers to an indictment if the neglect was willful. The acts of public officers being in by color of an election or appointment are valid, so far as the public is concerned."

Again:

"An officer de facto is one who comes into office by color of a legal appointment or election. His acts in that capacity are as valid, so far as the public is concerned, as the acts of an officer de jure. His acts in that capacity cannot be inquired into collaterally."

The same doctrine was laid down by the Supreme Court of Minnesota, in the recent case of Taylor vs. Taylor, et. al., (10 Minnesota, 107,): One ground of contest in this case was that "in certain towns at said election the judges and clerks of said election did not take the prescribed oath or any oath." The Court say:

"If the votes of the citizens are freely and fairly deposited at the time and place designated by law,

the intent and design of the election are accomplished. It is the will of the electors thus expressed that gives the right to the office, and the failure of the officers to perform a mere ministerial duty in relation to the election cannot invalidate it if the electors had actual notice and there was no fraud, mistake, or surprise."

Again the Court say:

"If the officers of election fail to perform their duty, the law provides a penalty; but the election is not necessarily rendered void."

Also, the Supreme Court of Pennsylvania, in the case of Baird vs. Bank, of Washington, (11 S. & R. 414.) We quote a sentence from the opinion in this

case:

"The principle of colorable election holds not only in regard to the right of electing, but of being elected. A person indisputably ineligible may be an officer de facto by color of election.”

Also, the Supreme Court of Illinois, in Pritchett et. al. vs. The People, (1 Gilm., 529.) In the course of the opinion the Court say:

"It is a general principle of the law that ministerial acts of an officer de facto are valid and effectual when they concern the public and the rights of third persons; although it may appear that he has no legal or constitutional right to the office. The interests of the community imperatively require the adoption of such a rule."

The same Court, in The People vs. Ammons, (5 Gilm., 107,) hold the same doctrine, and state it in this language:

"The proof offered would have shown that he was

an officer de facto, and as such his acts were as binding and valid when the interests of third persons or the public were concerned, as if he had been an officer de jure."

The Supreme Court of Missouri, in St. Louis County Court vs. Sparks, [10 Mo. 121,] says:

"When the appointing power has made an appointment, and a person is appointed who has not the qualifications required by law, the appointment is not therefore void. The person appointed is de facto an officer; his acts in the discharge of his duties are valid and binding. A statute prescribing qualification to an office is merely directory, and although an appointee does not possess the requisite qualifications his appointment is not therefore void, unless it is so expressly enacted."

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The supreme court of California, in the case of Whipley vs. McKune, (10 Cal., 352,) hold the same doctrine. In this case the election of McKune to the office of district judge was contested upon the ground that "the officers conducting the election in a given district were not sworn as the election laws require.” No fraud being shown the election was held valid, notwithstanding such failure of the officers to be

sworn.

The supreme court of New York discusses this question in an elaborate opinion in the case of The People vs. Cook, (14 Barbour, 259,) from which we quote a few sentences:

"It becomes important in this case to determine whether the objections which are taken to the inspectors of elections in the several cases presented in the bill of exceptions, are of that character which should

be held to invalidate the canvass in these several localities. These objections are of a two-fold character, extending to the regularity or legality of their appointment and to their omission to qualify by taking the proper oath of office.

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It

is sufficient that they were inspectors de facto. The rule is well settled by a long series of adjudications, both in England and this country, that acts done by those who are officers de facto are good and valid as regards the public and third persons who have an interest in their acts, and the rule has been applied to acts judicial, as well as to those ministerial in their character. This doctrine has been held and applied to almost every conceivable case. It cannot be profitable to enter into any extended discussion of the cases. The principle has become elementary, and the cases are almost endless in which the rule has been applied."

So, in the case of Greenleaf vs. Low, [4 Denio 168,] it was held that a person elected to the office of justice of the peace, who neglected to take the oath of office and to give the security required by law, is nevertheless in office by color of title, and his acts are valid as regards the public and third perThe Court say:

sons.

"Sufficient facts appeared to show that Jones was a justice of the peace de facto at the time he rendered the judgment in question. He came into his office by color of title. It is a well settled principle that acts done by such an officer are as valid, so far as the public or the rights of third persons are concerned, as if he had been an officer de jure, and that

the title of the office cannot be collaterally inquired into."

Exactly the same point was decided in the same way in the case of Weeks vs. Ellis, [2 Barbour, 324,] where a justice of the peace had entered upon the duties of his office without taking the oath prescribed by law.

And so, likewise, in the case of Keyser vs. Mc Kisson, [2 Rawle, 139,] it was held that the failure of county commissioners to take the oath prescribed by the constitution of Pennsylvania did not invalidate their acts as such, where the public or third persons were concerned.

So, in the case of McGregor vs. Balch, [14 Vermont, 428] it was held that, although a person could not legally hold the office of justice of the peace at all while holding the office of assistant postmaster under the United States, yet, having entered the former office under the forms of law, he was a justice of the peace de facto, and his acts as such were valid as to third persons and the public.

§ 80. A mere usurper in an office can have no authority, and can perform no valid official act. It is enough if he possess color of authority, but without this, his acts are void even as to third parties and the public. It was accordingly held that where certain persons were chosen county officers in an unorganized county in a territory, by a public meeting without the shadow of legal right or authority, and commissioned as such by the governor, who also acted without any color of right or authority, they were usurpers, and that an election held under their authority was void. [Daily vs. Estabrook, 1 Bartlett