CASES

IN THE

SUPREME COURT

OF

GEORGIA.

WILLINGHAM V. HOOVEN.

(74 Ga. 283.)

Damages-remote.

In an action by the purchaser of a saw-mill and outfit to recover damages against the vendor because the property was inferior to that contracted for, losses sustained by the purchaser from abandoning planting operations, improvements made in order to carry on such business, losses of profits by reason of having received an inferior outfit, additional purchases of timber, stock, vehicles, etc., to run a mill of the capacity of that bargained for, and personal services of himself and assistant while he was running the mill, or until its capacity had been fully tested, do not form proper elements of damage.

G. J. Wright, C. B. Wooten, L. Arnheim, for defendant.

HALL, J. [Omitting statement of pleadings and minor points.] The only remaining question is one of more difficulty than the others. The complainant claimed damages for alleged losses sustained by abandoning his planting operations and going into the

Smith v. Bondurant.

SMITH V. Bondurant.

(74 Ga. 416.)

Office and officer — notary — attestation after term.

The attestation of an affidavit by a notary after the expiration of the term of his office, both parties acting in good faith, is valid. (See note, p. 440.)

C. H. & R. B. Barnes, for plaintiffs in error.

Hoke Smith, B. F. Abbott, for defendant.

JACKSON, C. J. The legal question which this record makes is, whether a deed of assignment was void because the affidavit thereto was made before a commercial notary public a few days after the expiration of his term of office, and before the renewal of his appointment; and that question turns on this, was he then a de facto officer, and if not, then under our statute, is he de jure an officer? And that turns upon this, is the commercial notary a public officer?

1. Public officers hold over until successors are appointed. Code, § 132. Notaries public for commercial purposes are public officers. They are appointed by the judges of Superior Court. Code, § 1497. They take an oath before the clerk of the court. Code, § 1498. They hold their office for four years. Code, § 1499. They are sworn like all public officers, that they are not holders of public money belonging to the State. Code, § 1498; also § 129, sub-section 2. Removal from the county vacates the office. Code, § 1501. "They may administer oaths in all matters incident to them as commercial officers, and all other oaths which are not by law required to be administered by a particular officer." Code, § 1502, sub-section 4. Each notary must have "a seal of office, which shall have for its impression his name, officially, and the name of the State and county for which he was appointed," and "he must keep a fair register of all his notarial acts, signed by him, together with the date of the transaction."

So that it seems clear that they are public officers, whose duties are regulated by law, whose oaths are prescribed and recorded on the minutes of the court, and who are authorized to administer any oath not confined by law to a particular officer, and therefore this oath to an assignment. It follows that until a successor was ap

Smith v. Bondurant.

pointed or he was removed (Code, § 1499), his office continued, and he remained de jure the notary for the bank where he acted, and filled that public office for the public as a commercial notary, and empowered to administer this oath to this assignor.

2. But suppose he was not de jure a public officer, was he not de facto such, and his acts good, when done in good faith by him for any of the public also acting in good faith? We think so most clearly. These de facto officers, their official acts, colore officii, must be recognized for public safety. The security of property, the vital interests of society, demand the recognition of their acts. It has been our law, or rather, that of our ancestors, ever since the war of the Roses in England, when the king, the fountain of office there, was changed by the winds of revolution, and with him, his appointees were swept from rightful or de jure offices, but all their acts while in office were held binding and valid — made so by statute and observed by both sides—all being recognized as de facto officers.

It is said that because the number of these commercial notaries is not fixed by law, therefore they are de facto officers when holding over, because they have no successors.

It strikes us that the argument is nothing else than a non sequitur. Whether one or a hundred fill the office, it is still an office. If at the option of the appointing power, one may be enough or one hundred may be necessary in county or city, the office is still public, and successors are appointed for those who go out. But in the case before us, this notary public was appointed and acted for and at a bank, a necessary officer there, and when it was ascertained that his term of four years had expired, he was reappointed. Suppose another had been appointed and he had been rejected by the judge, would not that other have been his successor? Most assuredly. So that this office at this bank is a public office, administered by a man appointed to it, not by the bank but by the State; not for the bank alone but for the whole public, the bank and all dealing with it or not dealing with it at all, but desiring an official act to be done by this appointee of the State, about any business intrusted to him by the State; and even if out du jure because his term of four years was gone, the act was that of a de facto officer who had not been removed and to whose office no successor had been appointed.

The principle on which the whole doctrine of the recognition of de facto officers and their acts rests, is not how they happen to act de facto whether the cause be an illegal appointment or election,

Smith v. Bondurant.

or an illegal holding over, but it is the convenience of the public the necessity of the thing, the impossibility of one always knowing when an officer to whom he goes on business of a ministerial character is legally in office, was properly elected or has held too long; it is that where the public servant is acting in the place apparently all right, and the applicant to him in good faith has a deed witnessed or an oath administered, that it is better for society that the act de facto stand than that the business of society, the title to property be all wrecked, because parties did not know that the term of office of the public official had expired the day before.

See 53 Mo. 334; 37 Me. 427; 9 Am. Rep. 431; Cro. Eliz. 699, 533; 1 Moore, 109; 1 Ld. Raym. 658; 12 Modern, 467, cited by defendant in error. See also 19 Am. Dec. 63, n; 4 Ired. 368; 9 Am. Rep. 434, n; 74 Ala. 411; 9 Ga. 314, particularly p. 316, opin. ion of court; 5 Ga. 343 (4); 11 Ga. 426 (2); 14 Ga. 192 (2); 20 Ga. 748, 749 (3, 4); 44 Ga. 454; 52 Ga. 239 (6); G3 Ga. 527, where the doctrine is applied even to the intendant and commissioners of a town in levying taxes. The case of Cary v. The State, determined by the Supreme Court of Alabama at its December term, 1884, in a very able and exhaustive opinion by SOMERVILLE, justice, was cited by counsel for plaintiff in error, who was misled by a newspaper syllabus of it; but it is fully on the line of this opinion and the authorities cited above, and we are indebted to Mr. Barnes, since the citation of the syllabus on the hearing of this cause, for the full text of the opinion. Misled himself by the syllabus, he acted as upright counsel always should when he furnished us with the opinion in full.

Judgment affirmed.

HALL, J., concurred; BLANDFORD, J., dissented.

NOTE BY THE REPORTER.- In Cary v. State, 76 Ala. 78, cited in the principal case, the court said: "There are two classes of notaries public in this State, each of which is appointed by the governor. The duties of the first class include the administration of oaths, taking acknowledgments of certain instruments of writing, the protesting of bills of exchange, and other like powers, such as are expressly prescribed by statute, or authorized by general commercial usage. Code, § 1325, 1329-1331. These are notaries public in the common acceptation. The second class, in addition to these powers, possess also the jurisdiction of justices of the peace, civil and criminal, and are therefore judicial officers. The governor is authorized by the Constitution to appoint one notary of this class for each election precinct in the several counties of the State, and one for each ward in cities of over five thousand in

Smith v. Bondurant.

habitants, who are ex officio justices of the peace within their respective wards or precincts. While the statute expressly declares that the first class shall 'hold office for three years from the date of their commissions, and until their successors are qualified,' it is equally clear in the declaration that the second class shall hold their office three years from the date of their commissions, thus by obvious implication excluding a construction which would permit them to hold for a single day after the expiration of their commissions. Code, 1325; Const. 1875, Art. IV, § 26.

"Courts are authorized and required to take judicial notice of the various commissioned officers of the State, and to know the extent of their authority, their official signatures, and their respective terms of office-when such terms commence, and when they expire. Graves v. Anderson, at present term: Coleman v. State, 63 Ala. 93; 1 Greenl. Ev. (14th ed.), § 6. This cognizance,' as observed in Gordon v. Tweedy, 74 Ala. 237-8, may often extend far beyond the actual knowledge, or even the memory of judges, who may therefore resort to such documents of reference, or other authoritative sources of information as may be at hand, and may be deemed worthy of confidence.' The dates of these commissions are matters of public record in the executive department of the State government, being accessible to inquiry by all who may be concerned, and the law fixes the duration of each official term.

"Under these principles of law, the Circuit Court was required to take judicial cognizance of the fact that French Nabors, who issued the warrant sought to be excluded from evidence, was commissioned by the governor of Alabama as a notary public and ex officio justice of the peace, on the fifth day of May, 1879, and that his term of office expired on the fifth day of May, 1882, three years from the date of his commission, and several months before the issue of the warrant, which is shown to have been issued the twenty-ninth day of July, 1882. Nabors was not therefore an officer de jure when he assumed to do this official act; and unless he was an officer de facto, the paper must be held to have no legal validity as a warrant, and consequently to confer no authority upon Reynolds to make an arrest under it. Noles v. State, 24 Ala. 672. In this aspect of the case, excluding from consideration all inquiry as to its de facto character, a point which we propose next to consider, the paper should have been excluded from evidence as a legal and valid warrant, although admissible as a part of the res gesta, if shown to have been exhibited and read to the defendant, at or about the time of the difficulty between the parties, which resulted in the alleged shooting of Reynolds.

"Was Nabors however a de facto officer at the time he issued the paper in question? — an act which was done within something less than three months after the expiration of his official term. The general statement is made, that he was an acting notary public at this time; but there is no proof of any other official act being performed by him within this period of time. It may be proper to consider the rules of law governing this feature of the case, in view of the fact that the cause must necessarily be remanded for a new trial, and additional evidence may be offered on this point.

"The rule is well settled, that the official acts of an officer de facto are just as valid, for all purposes, as those of an officer de jure, so far as the public and

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