plied with the forms of law, taken the oath of office, filed a bond, etc., or even whether, if appointable, the governor or the mayor has the appointment. The public and third persons, in their dealings with each other and with him as such acting officer, have, therefore, a right to act upon such reputation, and as to them, he is a good officer, whether he has a legal title to the office or not, so far as they are interested in his acts."

A

People v. Staton, 73 N. C. 546. "I scarcely think it necessary to cite authorities, to show the distinction between mere usurpers, and officers de facto and de jure. usurper is one who takes possession without any authority. His acts are utterly void unless he continues to act for so long a time or under such circumstances as to afford a presumption of his right to act. And then his acts are valid as to the public and third persons. But he has no defence in a direct proceeding against himself. A de facto officer is one who goes in under color of authority- * who evercises the duties of the office so long, or under such circumstances as to raise a presumption of his right; in which cases his necessary official acts are valid, as to the public and third persons, but he may be ousted by a direct proceeding. A de jure officer is one, who is regularly and lawfully elected or appointed and inducted into office and exercises the duties

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as his right. All his necessary of ficial acts are valid and he cannot be ousted. The only difference be tween an officer de facto and an officer de jure is, that the former may be ousted in a direct proceeding against him, while the latter cannot be. So far as the public and third persons are concerned, there is no difference whatever. The acts of one have precisely the same force and effect as the acts of the other."

344 Lockhart v. City of Troy, 48 Ala. 579; Diggs v. State, 49 Ala. 311; State v. Carroll, 38 Conn. 449. The opinion of Butler, C. J., in this case has been characterized by the supreme court of the United States as "An elaborate and admirable statement of the law, with a review of the English and American cases, on the validity of the acts of de facto officers, however illegal the mode of their appointment." The definition of a de facto officer and the conditions under which one will exist is given as follows: "An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised.

"First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to

submit to or invoke his action, supposing him to be the officer he assumed to be.

"Second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement or condition, as to take an oath, give a bond, or the like.

"Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.

"Fourth, under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such." Brown v. Flake, 102 Ga. 528, 29 S. E. 267; Waller v. Perkins, 52 Ga. 233; Bailey v. Fisher, 38 Iowa, 229; Wheeler & Wilson Mfg. Co. v. Sterrett, 94 Iowa, 158, 62 N. W. 675; Tucker v. Aiken, 7 N. H. 113; Mallett v. Uncle Sam Gold & Silver Min. Co., 1 Nev. 188; Hamlin v. Dingman, 5 Lans. (N. Y.) 61; Trenton Com'rs v. McDaniel, 52 N. C. (7 Jones) 107; Smith v. Lynch, 29 Ohio St. 261; Gregg Tp. v. Jamison, 55 Pa. 468; State v. Elliott, 13 Utah, 471, 45 Pac. 346; State v. Seavey, 7 Wash. 562, 35 Pac. 389; Chicago & N. W. R. Co. v. Langlade County, 56 Wis. 614; Cole v. Village of Black River Falls, 57 Wis. 110. Town officers elected under an un

constitutional act are officers de facto. Yorty v. Paine, 62 Wis. 154.

345 Darrow v. People, 8 Colo. 417; Coles County v. Allison, 23 Ill. 437; Case v. State, 69 Ind. 46; Wapello County v. Bigham, 10 Iowa, 39; State v. Powell, 101 Iowa, 382, 70' N. W. 592; Woodside v. Wagg, 71 Me. 207; Koontz v. Burgess of Hancock, 64 Md. 134, 20 Atl. 1039; Springett v. Colerick, 67 Mich. 362, 34 N. W. 683; People v. Payment, 109 Mich. 553, 67 N. W. 689; City of Vicksburg v. Groome (Miss.) 24 So. 306; Paxton v. State, 59 Neb. 460, 81 N. W. 383. The failure of a state officer to qualify within the time fixed by law may be waived by the state and it may elect to deal with him not only as the officer de facto but as one de jure.

Farrier v. Dugan, 48 N. J. Law, 613, affirming 47 N. J. Law, 383; Adams v. Tator, 42 Hun (N. Y.) 384; Oliver v. Jersey City, 63 N. J. Law, 634, 44 Atl. 709, 48 L. R. A. 412, reversing 63 N. J. Law, 96, 42 Atl. 782; Morford v. Ter., 10 Okl. 741, 63 Pac. 958, 54 L. R. A. 513; Roche v. Jones, 87 Va. 484, 12 S. E. 965. But see Creighton v. Com.,. 83 Ky. 142.

346 Waite v. City of Santa Cruz, 89 Fed. 619; Cary v. State, 76 Ala. 78; People v. Beach, 77 Ill. 52; Morton v. Lee, 28 Kan. 286; Hale v. Bischoff, 53 Kan. 301, 36 Pac. 752; Dugan v. Farrier, 47 N. J. Law, 383; State v. Callahan, 4 N. D. 481, 61 N. W. 1025; State v. McJunkin, 7 S. C. (7 Rich.) 21; State v. Lee,.

35 S. C. 192, 14 S. E. 395; State v. Williams, 5 Wis. 308. But see Woods v. Inhabitants of Bristol, 84 Me. 358, 24 Atl. 865; Hallgren v. Campbell, 82 Mich. 255, 46 N. W. 381, 9 L. R. A. 408, and Town of La Pointe Sup'rs v. O'Malley, 46 Wis. 35, 50 N. W. 521.

347 Norton v. Shelby County, 118 U. S. 425. "But it is contended that if the act creating the board was void, and the commissioners were not officers de jure, they were nevertheless officers de facto, and that he acts of the board as a de facto court are binding upon the county. This contention is met by the fact that there can be no officer, either de jure or de facto, if there be no office to fill. As the act attempting to create the office of commissioner never became a law, the office never came into existence. Some persons pretended that they held the office, but the law never recognized their pretensions, nor did the supreme court of the state. Whenever such pretensions were considered in that court, they were declared to be without any legal foundation, and the commissioners were held to be usurpers.

"The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be

affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question. But the idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an officer who holds no office, and a public office can exist only by force of law. This seems to us so obvious that we should hardly feel called upon to consider any adverse opinion on the subject but for the earnest contention of plaintiff's counsel that such existence is not essential and that it is sufficient if the office be provided for by any legislative enactment, however invalid. Their position is, that a legislative act, though unconstitu tional, may in terms create an office, and nothing further than its apparent existence is necessary to give validity to the acts of its assumed incumbent. That position, although not stated in this broad form, amounts to nothing else. It is difficult to meet it by any argu

*

ment beyond this statement. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. * State v. Carroll, 38 Conn. 449; People v. Knopf, 183 Ill. 410, 56 N. E. 155; In re Hinkle, 31 Kan. 712. Carleton v. People, 10 Mich. 259. "Where there is no office there can be no officer de facto, for the reason that there can be none de jure. The county offices existed by virtue of the Constitution the moment the new county was organized. No act of legislation was necessary for that purpose. And all that is required where there is an office, to make an officer de facto, is, that the individual claiming the office is in possession of it, performing its duties, and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary his election or appointment should be valid, for that would make him an officer de jure. The official acts of such persons are recognized as valid on grounds of public policy, and for the protection of those having official business to transact with public functionaries."

Burt v. Winona & St. P. R. Co., 31 Minn. 472; Adams v. Lindell, 5 Mo. App. 197. When money and labor have been expended under a contract made by an officer after,

the abolition of his office, such contract will be validated, where the officer was ignorant of the abo lition of his office owing to a false announcement of election returns. Jester v. Spurgeon, 27 Mo. App. 477; Ayers v. Lattimer, 57 Mo. App. 78; Ex parte Snyder, 64 Mo. App. 58; Flaucher v. City of Camden, 56 N. J. Law, 244, 28 Atl. 82. There can be no de facto incumbent of an office by an unconstitutional statute. In re Quinn, 152 N. Y. 89, 46 N. E. 175; Blackburn v. Oklahoma City, 1 Okl. 292, 31 Pac. 782, 33 Pac. 708; State v. Lane, 16 R. I. 620, 18 Atl. 1035; State v. Lee, 35 S. C. 192; Daniel v. Hutcheson, 4 Tex. Civ. App. 239, 22 S. W. 278; Williams v. Clayton, 6 Utah, 86, 21 Pac. 398. One cannot be a de facto officer who is constantly in hiding.

348 Leach v. People, 122 Ill. 420, 12 N. E. 726. The acts of a board of supervisors in levying taxes and performing other duties appurtenant to the office where the public and third persons are interested are valid though they are elected under an unconstitutional act. Garfield Tp. v. Finnup, 8 Kan. App. 771; Walnut Tp. v. Jordan, 38 Kan. 562, 16 Pac. 812; Attorney General v. Town of Dover, 62 N. J. Law, 138, 41 Atl. 98; Kirker v. City of Cincinnati, 48 Ohio St. 507, 27 N. E. 898; Merchants' Nat. Bank v. McKinney, 2 S. D. 106, 48 N. W. 841.