This principle is applied to the acts of de facto officers 351 and the decisions are uniformly to the effect that the acts of an officer de facto, within the scope of his actual authority, are valid so far as the public and third persons are concerned.352 This doctrine has Co., 28 Ind. 181; Davidson v. State, 135 Ind. 254, 34 N. E. 972; State v. Crowe, 150 Ind. 455, 50 N. E. 471. The validity of the acts of a de facto officer are not affected by a subsequent judgment of ouster. County Court, 28 Hun (N. Y.) 14; Cornish v. Young, 1 Ashm. 153 (Pa.); Campbell v. Com. 96 Pa. 344; State v. Hart, 106 Tenn. 269, 61 S. W. 780; Aulanier v. Governor, 1 Tex. 653; Dane v. State, 36 Tex. Cr. App. 84, 35 S. W. 661; Northwestern Lumber Co. v. Chehalis County, 24 Wash. 626, 64 Pac. 909. 351 Brady v. Sweetland, 13 Kan. 41; Yancy v. Town of Fairview, 23 Ky. L. R. 2087, 66 S. W. 636; Friedman v. Horning, 128 Mich. 606, 87 N. W. 752; Simpson v. McGonegal, 52 Mo. App. 540; Sawyer v. Dooley, 21 Nev. 390; In re Powers' Estate, 65 Vt. 399; Cooper v. Moore, 44 Miss. 386. The official acts of the incumbent of a judicial office discharging its ordinary functions are conclusive as to all persons interested. See, also, cases cited in the following note. 352 Vaccari v. Maxwell, 3 Blatchf. 368, Fed. Cas. No. 16,810; In re Ah Lee, 6 Sawy. 410, 5 Fed. 899; Murphy v. Shepard, 52 Ark. 356, 12 S. W. 707, following Equalization Board v. Land Owners, 51 Ark. 516, 11 S. W. 822; People v. Hecht, 105 Cal. 621, 38 Pac. 941, 27 L. R. A. 203; Smith v. State, 19 Conn. 493; State v. Brennon, 25 Conn. 278; Soudant v. Wadhams, 46 Conn. 218; Village of Chester v. Leonard, 68 Conn. 495, 37 Atl. 397; Waller v. Perkins, 52 Ga. 233; Gunn v. Tackett, 67 Ga. 725; School Dist. No. 7 v. Tingley, 73 Ill. App. 471; People v. Lieb, 85 Ill. 484; People v. Weber, 89 Ill. 347; Sharp v. Thompson, 100 Ill. 447; Golder v. Bressler, 105 Ill. 419; Gumberts v. Adams Express Roberts v. Hill, 137 Ind. 215; Peirce v. Weare, 41 Iowa, 378; Wheeler & Wilson Mfg. Co. v. Sterrett, 94 Iowa, 158, 62 N. W. 675; Metropolitan Nat. Bank v. Commercial State Bank, 104 Iowa, 682, 74 N. W. 26; Stickney v. Stickney, 77 Iowa, 699; Dolan v. Topping, 51 Kan. 321; Hale v. Bischoff, 53 Kan. 301; Whiting v. City of Ellsworth, 85 Me. 301, 27 Atl. 177; Auditors of Wayne County v. Benoit, 20 Mich. 176; School Dist. No. 8 v. Root, 61 Mich. 373, 28 N. W. 132; Attorney General v. Parsell, 99 Mich. 381; McCormick v. Fitch, 14 Minn. 252 (Gil. 185); Carli v. Rhener, 27 Minn. 292; Fulton v. Town of Andrea, 70 Minn. 445, 73 N. W. 256; Wimberly v. Boland, 72 Miss. 241, 16 So. 905; Ex parte Johnson, 15 Neb. 512; Magneau v. City of Fremont, 30 Neb. 843, 47 N. W. 280, 9 L. R. A. 786; Dredla v. Baache, 60 Neb. 655, 83 N. W. 916; Sawyer v. Dooley, 21 Nev. 390, 32 Pac. 437; Town of Lisbon v. Town of Bow, 10 N. H. 167; Attorney General V. Town of Marston, 66 N. H. 485, 22 Atl. 560, 13 L. R. A. 670; Savage v. Ball, 17 N. J. Eq. (2 C. E. Green) 142; Hoagland v. Culvert, 20 N. J. Law (Spencer) 387; Kimball Hendee, 57 N. J. Law, 307, 30 Atl. 894; Jersey City v. Erwin, 159 N. J. Law, 282, 35 Atl. 948. A de jure officer cannot be created by a de V. been well stated by a text book writer 353 and applies both in respect to the creation of rights or relations between third parties and also between the corporation they represent and others.354 facto board. Erwin v. City of Jersey City, 60 N. J. Law, 141, 37 Atl. 732; Flaucher v. City of Camden, 56 N. J. Law, 244; Barrett v. Sayer, 58 Hun, 608, 12 N. Y. Supp. 170; Snyder v. Schram, 59 How. Pr. (N. Y.) 404; Dolan v. City of New York, 68 N. Y. 274; People v. McDowell, 70 Hun (N. Y.) 1; Gilliam v. Reddick, 26 N. C. 368; People v. Staton, 73 N. C. 546. The general rule is now settled by the American and English cases that there is no difference between the acts of de facto and de jure officers so far as the public and third persons are concerned. Blackburn v. Oklahoma City, 1 Okl. 292; Morford v. Territory, 10 Okl. 741, 63 Pac. 958, 54 L. R. A. 513; Angell v. Steere, 16 R. I. 200, 14 Atl. 81; Pearce v. Hawkins, 32 Tenn. (2 Swan) 87; Maley v. Tipton, 39 Tenn. (2 Head.) 403; Kelley v. Story, 53 Tenn. (6 Heisk.) 202; Douglas v. Neil, 54 Tenn. (7 Heisk.) 438; Stokes v. Acklen (Tenn. Ch. App.) 46 S. W. 316; Daniel v. Hutcheson, 4 Tex. Civ. App. 239; McAllister v. Swan, 16 Utah, 1; Burr's v. McDonald, 3 Grat. (Va.) 215; Roche v. Jones, 87 Va. 484, 12 S. E. 965; In re Powers Estate, C5 Vt. 313, 26 Atl. 640; Knight v. Town of West Union, 45 W. Va. 194, 32 S. E. 163. But see Miller v. Callaway, 32 Ark. 666; Conway v. City of St. Louis, 9 Mo. App. 488; Fylpaa v. Brown County, 6 S. D. 634, 62 N. W. 962. See, also, article by Wilbur L. Stonex, 34 Cent. Law J. 212, on the validity of the acts of de facto ofofficers. 853 Mechem, Pub. Off. § 328. "Third persons who have occasion to deal with a public officer and to rely upon his acts, finding a person in the apparent possession of the office and ostensibly exercising its functions lawfully and with the acquiescence of the public, can neither be expected to know, nor to investigate, in every instance, his title to the office or his eligibility to election to it. As to them, he must be held to be, what he appears to be, the lawful occupant of the office. This rule is demanded by public policy as the only one affording protection to the public." 354 City of Lampasas v. Talcott (C. C. A.) 94 Fed. 457. Officers acting under an irregular municipa organization are de facto officers and bonds issued by them on behalf of a municipal corporation are not void. "In the case at bar the legal charter under the special act was laid aside. One illegal, but having all the appearances of legality, was formed. It named the necessary officers, elected them, and performed all the functions of a municipal corporation for a period of nearly seven years. The state, during this period, did not challenge its exercise of power. It issues $40,000 of bonds, and obtains the benefit of their sale. Then, by judgment of the court, the officers are removed as officers of the new organization, and others elected under the first charter. Can it be held that the city, composed of the same people, including the same resources for revenue, is now absolved of all liability upon the bonds? Can a city, under an illegal and irregular § 660. Rights of de facto officers to compensation. An officer de facto is not entitled to compensation for services performed during the time he was acting as such and cannot maintain an action therefor,355 but if such compensation, whether fees, salary or commissions is paid to him, it cannot be recovered in an action brought for that purpose.356 On the other hand, the officer de jure who may have been prevented from performing the duties of an office by reason of the existence of a de facto officer has no right of action as against the state or the public for the compensation of which he has been deprived.357 His remedy is in an action against the de facto officer to whom it may have been paid.358 change of limits, preserving the same name, obtain credit for public improvements, and, when the irregular charter is vacated, return to the use of the first, which has all along been in force, and then stand freed of the debt? The people and property now sought to be charged were all, or nearly all, included and represented in the irregular corporation which issued the bonds. They get the benefit of the bonds. The facts show that the city and citizens were acting in good faith. The bonds were issued with public approval, and without objection. The improvements were accepted, and it was intended that the bonds should be paid. The officers representing the city in the issuance of the bonds believed that they were clothed with authority by the procedure of 1883. In this they were mistaken. The charter of 1873 was still in existence. It authorized the election of officers of the city. The officers had been elected. Although they 358 Coughlin v. McElroy, 74 Conn. 397, 50 Atl. 1025; Rice v. Tevis' Adm'r, 21 Ky. L. R. 110, 50 S. W. 1101; Nichols v. McLean, 63 How. Abb. Corp. Vol. II-40. believed that they held office under the new organization, they were officers de facto of the city, actually filling places created by the special act of 1873. The special act of incorporation authorized the issuance of the bonds for public improvement. An ordinance was passed to issue them. The bonds, we hold, were not made invalid by reason of the illegal effort at incorporation made in 1883." 355 Belcher v. United States, 34 Ct. Cl. 400; People v. Potter, 63 Cal. 127; Mayfield v. Moore, 53 Ill. 428; McCue v. Wapello County, 56 Iowa, 698; Garfield Tp. v. Crocker, 63 Kan. 272, 65 Pac. 273; City of Vicksburg v. Groome (Miss.) 24 So. 306; Christian v. Gibbs, 53 Miss. 314; Meagher v. Storey County, 5 Nev. 244; Jersey City v. Erwin, 59 N. J. Law, 282; Ex parte Norris, 8 S. C. (8 Rich.) 408. 356 Badeau v. United States, 130 U. S. 439. 387 Rasmussen v. Carbon County Com'rs, 8 Wyo. 277, 56 Pac. 1098, 45 Pr. (N. Y.) 448; Terhune v. City of New York, 88 N. Y. 247; Palmer v. Darby, 64 Ohio St. 520, 60 N. E. 626. § 661. De facto officers; liability. 359 Since the law regards the acts of de facto officers as valid both with respect to the public and third persons dealing with them, they cannot, on the other hand, claim an exemption from a liability which may attach to their acts or offer as an excuse for their wrong doing their legal condition as a de facto officer and not one de jure.360 They will be protected, however, from a personal liability in the performance of their official acts by those same rules of law and under the same circumstances which are applied and which, when they exist, protect an officer de jure.361 § 662. Official acts; corporate liability. A public corporation is in its legal nature an artificial person and can, therefore, act only through its duly authorized agents. The liability of the corporation for their acts will be either that based upon a contract relation or one sounding in tort. The contract liability has already been considered in chapter five, subdivision six, discussing the power of a public corporation to contract and a liability founded upon a tortious act of one of its officials or employes will be more fully considered in chapter ten.362 L. R. A. 295. See, also, City of Chi cago v. Luthardt, 191 Ill. 516, 61 N. E. 410. Where compensation attached to an office has not been paid a de facto officer, it can be lawfully paid to the de jure official. Whitaker v. City of Topeka, 9 Kan. App. 213, 59 Pac. 668; Blydenburgh v. Carbon County Com'rs, 8 Wyo 303, 56 Pac. 1106. 359 Miller v. Callaway, 32 Ark. 666; People v. Weber, 86 Ill. 283; Gourley v. Hankins, 2 Iowa, 75; Fowler v. Bebee, 9 Mass. 231, 235; Petersilea v. Stone, 119 Mass. 465, 468; Short v. Symmes, 150 Mass. 298; Stubbs v. Lee, 64 Me. 195; Pooler v. Reed, 73 Me. 129; State v. Dierberger, 90 Mo. 369; Brewster v. Hyde, 7 N. H. 206; Blake v. Sturtevant, 12 N. H. 567; Green v. Burke, 23 Wend. (N. Y.) 490; People v. A fuller statement of some principles already or to be suggested will now be given bearing upon the subject of the results of official action, the sections considering the two subjects discussing them respectively from the standpoint of the law of contracts and the law of torts rather than from that of official action. § 663. Contract liability. In determining the contract liability of a public corporation as depending upon an act of one of its officials or employes, it must be remembered that a public corporation is one of limited or special powers 363 and that its officers and agents are not possessed of the general power and authority usually imputed to officers and agents of either natural persons or private corporations, but have special and limited powers only.36 Two questions are naturally involved, therefore, and must be answered in the affirmative before a contract liability can exist. First, is the act one within the powers of the corporation either as expressly granted to it or as impliedly existing because absolutely necessary to its corporate life or to the exercise of some power expressly given.365 Ill. 86; City of Chicago v. O'Malley, 95 Ill. App. 355; Connolly v. City of Waltham, 156 Mass. 368, 31 N. E. 302. 363 Clark v. City of Des Moines, 19 Iowa, 199, 87 Am. Dec. 423; Greer County Com'rs v. Watson, 7 Okl. 174, 54 Pac. 441. See chapter V, subd. 1, ante. 364 Parsel v. Barnes, 25 Ark. 261; People v. Warfield, 20 Ill. 159; Reddick v. People, 82 Ill. App. 85; Lee County v. Deming, 3 G. Greene (Iowa) 101; Hull V. Marshall County, 12 Iowa, 142; Casady v. Woodbury County, 13 Iowa, 113; Jackson Tp. v. Home Ins. Co., 54 Ind. 184; Mathe v. Parish of Plaquemines, 28 La. Ann. 77; Citizens' Bank v. Police Jury of Concordia, 28 La. Ann. 263; Small v. Inhabitants of Danville, 51 Me. 359; Goff V. Inhabitants of Rehoboth, Mass. (12 Metc.) 26; Thayer v. City of Boston, 36 Mass. (19 Pick.) 511; 53 Clark v. Russell, 116 Mass. 455; Davis v. Kalamazoo Tp., 1 Mich. N. P. 16; Gray v. Coahoma County, 72 Miss. 303, 16 So. 903; Benton County Sup'rs v. Patrick, 54 Miss. 240; Rollins v. Town of Chester, 46 N. H. 411; Burns v. City of New York, 5 T. & C. (N. Y.) 371; Weed v. Tucker, 19 N. Y. 422; People v. Ulster County Sup'rs, 93 N. Y. 397; State v. Lake Shore & M. S. R. Co., 1 Ohio N. P. 292; Bank of Spring City v. Rhea County (Tenn. Ch. App.) 59 S. W. 442; Miles v. Town of Albany, 59 Vt. 79; State v. Hastings, 12 Wis. 596. See, also, authorities cited under §§ 275 et seq., ante. But see Gifford v. Town of White Plains, 25 Hun (N. Y.) 606. 365 Marion County v. Coler (C. C. A.) 67 Fed. 60; Covington & M. R. Co. v. City of Athens, 85 Ga. 367, 11 S. E. 663; Lawrence County Com'rs v. McLahlon (Ind. App.) 37 N. E. 557; Moser v. Boone |