# Cocke v. Halsey

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United States Supreme Court
41 U.S. 71
Cocke v. Halsey
ERROR to the Circuit Court for the Southern District of Mississippi. On the 24th March 1838, James Carter & Company executed a deed of trust to William L. Moore, for the purpose of securing the payment of certain sums of money to the Commercial Bank of Columbus; by which they conveyed, among other things, certain slaves, then in Lowndes county, Mississippi, in trust to sell the said property for the benefit of the bank in Columbus. This deed was presented for record to the officer of the clerk of the court of probate for Lowndes county, on the 24th day of March 1838, the day on which it was executed; and was indorsed, 'Received in my office for record, on the 24th day of March 1838, William P. Puller, clerk pro tem.' And it was afterwards certified to have been recorded on the same day, under his hand and seal, by William P. Puller, clerk pro tem.
At the time this record and certificate were made by William P. Puller, as clerk pro tempore, one Robert D. Haden was the clerk of probate for the county of Lowndes, duly elected, qualified and sworn. Haden was duly elected in November 1837, for two years, and entered upon the discharge of his duties some time in the month of February 1839. Haden visited the state of Tennessee on business, and did not return in time to perform the duties of clerk at the March term 1839. In consequence of his absence, Thomas Sampson, Esquire, judge of probates, upon the opening of the court of probate, at March term 1839, appointed William P. Puller to act as clerk pro tempore during the absence of Haden. This deed was recorded by Puller, during the absence of Haden, but after the March term of the court of probate, not while the said court was in session. Haden afterwards returned and resumed the duties of his office. The above-described property was, by the trustee, left in the possession of James Carter & Company.
At the May term 1838 of this court, judgment in the above-entitled case was obtained against the said James Carter & Company. Execution was issued upon this judgment, and was levied on the assigned negroes, in the possession of James Carter & Company. Upon the levy being made, the trustee came forward and claimed this property, and gave the necessary bond; and the issue was now before the court to try the right to the said salves. If the deed of trust was properly and legally recorded, then it was admitted, that the judgment in the above case was no lien upon said slaves, and that the trustee would be entitled to the same; otherwise, if the deed was not duly and legally recorded, the slaves were subject to the satisfaction of the said judgment.
The court adjudged, that the trust-deed was not duly and legally recorded; and that the said acts and proceedings of the said William P. Puller, as clerk pro tempore, in the recording of the said trust-deed, was without authority of law, and was altogether void; and so instructed the jury. To this opinion, the plaintiff excepted, and the jury having found a verdict according to the opinion of the court, the plaintiff prosecuted this writ of error to the judgment of the circuit court on the verdict.
The case was submitted to the court, on a printed argument, by Cocke, for the plaintiff; and was argued at the bar, by Key, for the defendant.
Cocke, in his argument, said:-The question involved in this case is, whether the deed of trust mentioned in the record, was properly recorded. This is to be determined, mainly, by the local laws of Mississippi. There are, nevertheless, some elementary principles involved.
The statute and constitutional law of Mississippi, which is supposed to bear upon this subject most directly, may be found as hereafter pointed out. By the act of 13th June 1822, deeds of conveyance were required to be recorded by the clerk of the county court of the proper county. Alden's Revision of the Laws of Mississippi, 297, § 1. This, by the same section, is declared to be in the county in which the land is situated. By § 4, p. 298, deeds in relation to personal property shall be recorded in that county in which such personal property shall remain. Same page, § 5, provides, that deeds of trust and mortgages shall take effect from the time they are delivered to the clerk to be recorded, and then only; but other deeds shall take effect from the time they were sealed and delivered, if recorded within three months: §§ 6-10 prescribe more in detail the duties of the clerk. By the act of the 28th June 1822, Alden's Revision, p. 183, § 7, this language is used: 'During the vacancy in the office of clerk of a county court, and during the unavoidable absence of the principal clerk and his deputies, if any he have, the court, in term time, or the presiding justice thereof, in vacation, may appoint a clerk pro tempore, who, after taking the necessary oath of office, shall be authorized to perform the duties of a clerk, and during his continuance in office shall be entitled to all the fees thereof.' By the act of the 16th of February 1828, Alden's Revision, p. 194, the judge of probate of the county and the justices of the county court then in commission, constitute the court denominated the county and probate court; and the latter part of the same section provides, that the clerk of the county court then in office should be clerk of said court.
Thus the law on this subject stood, until the year 1833, when the revised constitution of Mississippi was adopted. At p. 39, Alden's Revision, will be found the revised constitution. § 4, title 'Schedule,' provides, that 'all laws then in force in this state, not repugnant to this constitution, shall continue to operate until they shall expire by their own limitation, or be altered or repealed by the legislature.' By art. 4 of the constitution (Judicial Department), § 19, Alden's Revision, p. 34, 'the clerk of the high court of errors and appeals shall be appointed by said court for the term of four years; and clerks of the circuit, probate and other inferior courts, shall be elected by the qualified electors of the respective counties, and shall hold their offices for the term of two years.'
By art. 5 of the revised constitution (Executive Department), § 13, Alden's Revision, p. 34, 'all vacancies not provided for in this constitution, shall be filled in such manner as the legislature may prescribe.' By the act of the 2d of March 1833, Alden's Revision, p. 198, § 70, 'all vacancies, either in the office of judge or clerk of the said court, shall be filled by election, at the several precincts of the county, to be held at such time as the board of county police may prescribe, and on such public notice as may be provided for by law.' By the same act of the second of March 1833, Alden's Revision, p. 199, § 73, it is provided, 'that in case the clerk shall be at any time unable, from sickness or unavoidable causes, to attend said court, it shall be lawful for the judge of probates to appoint a clerk, to act as clerk pro tempore, who shall take an oath faithfully to discharge all the duties of his office, and for services rendered by the said clerk he shall be entitled to the fees allowed by law to the clerk of said court.' For the purpose of reversing the opinion of the circuit court, Mr. Cocke, for the plaintiff in error, contended: 1. That the deed of trust was properly recorded. 2. That the appointment of William P. Puller 'clerk pro tempore,' was in conformity with the laws of Mississippi, and valid. 3. That the regularity of his appointment could not be collaterally inquired into. 4. That it was competent for the probate court to make the appointment. 5. That as Puller was clerk de facto, by appointment, acting under color of office, his acts were valid as respects the rights of third persons and the community; whether he was clerk de jure or not. 6. That it is not competent for the federal tribunals to declare a state law, regulating her local and municipal police, void or otherwise unconstitutional; unless in conformity with the decisions of state tribunals, when the constitution of the United States is in no manner contravened. 7. That Puller's right to discharge the duties of clerk continued during the absence of Haden, and until Haden took the office, and resumed the duties of it.
To ascertain the intention of the legislature, laws on analogous subjects may be safely referred to. If this is allowable, we will find a similar provision in reference to the clerks of the circuit courts. Thus (Alden's Revision, p. 118, § 13), that 'during the vacancy of the office of clerk in any circuit court of law, and during the unavoidable absence of the principal clerk and his deputies, if any he have, the judge thereof, either in term-time, or in vacation, may appoint a clerk pro tempore, who, after taking the necessary oath of office, shall be authorized to perform the duties of a clerk, and, during his continuance in office, shall be entitled to all the fees thereof.' So, if, from any cause, there be a just exception to the sheriff, the coroner may act; or, if the cause extends to the coroner, then a justice of the peace may perform the duty. Alden's Revision, p. 334, § 15.
In the case before us, the agreement shows, that Haden, the clerk elected, was absent in the state of Tennessee. It is true, there was no vacancy. Haden was the incumbent elect, and consequently, there could be no election under the law. His absence was, however, about to create a kind of interregnum in the discharge of the duties of clerk. To prevent this, the statute above cited appropriately interposed itself, and provided a clerk pro tempore. The power of the judge of probate to do this is the question. It is contended—
1. That the appointment of William P. Puller, clerk pro tem. of the probate court of the county of Lowndes, was in conformity with the law of Mississippi, and in the absence of Hayden, the clerk elect, was directly required by the statute to be done. See Alden's Revision, p. 183, § 7, and p. 199, § 73, above cited.
2. The appointment of the court is itself conclusive evidence that the absence of Hayden was an unavoidable absence, and cannot now anywhere be questioned. The court which made the pro tem. appointment was alone competent to decide the question; and having made the appointment, its determination is conclusive, either that Hayden was sick, or absent from unavoidable causes; and the propriety of that decision cannot now anywhere be impeached, or collaterally inquired into. Trenton Railroad Company v. Stimpson, 14 Pet. 458.
If it be true, that there can be no clerk pro tem. of the probate court, so there could be no clerk pro tem. of the circuit court; nor could a coroner be allowed, in any contingency, to discharge the duties of sheriff, nor a justice of the peace to discharge the duties of coroner. The federal judiciary would thus undertake to determine that the whole system of the Mississippi legislation, in seeking to prevent an interregnum in the offices, and a failure of justice to her citizens in her municipal police, was invalid. It cannot be a sound construction of the constitution of Mississippi, to suppose, that if a clerk should, at any time, be unable, from sickness or other unavoidable causes, to attend to the duties of his office, the framers of the constitution intended, that the interest and business of the country should be suspended. If the constitution is to be construed as denying legislative action as to matters of this kind, not provided for in the constitution, then it must be considered, that the convention intended, that if the clerk elect should be unable, from sickness or unavoidable causes, to attend to the duties of his office, the citizen, for the time, should be without any power to perfect his legal rights, by having his deeds recorded; in other words, that as a trust-deed, under the laws of Mississippi, can have no validity until it be delivered to the clerk to be recorded, the convention must have intended, that, if the clerk should be unable, from sickness or other unavoidable causes, to attend to the duties, during that time, no right could be created by way of trust-deed; and if the sickness, or other unavoidable causes, should continue longer than three months, titles by deed should be ineffectual altogether. It is no answer to say, the clerk might have a deputy. In the case of this clerk, there was no deputy; nor does the constitution provide any more for a deputy-clerk than it does for a clerk pro tempore.
3. But if it be contended, that there is no such officer as clerk pro tem. known to the constitution of Mississippi (as such was the opinion of the court below), then it would follow, that as the legitimate business of a constitution is to regulate the general organic law, the duties of regulating in detail the various tribunals and jurisdictions created by it, have been wisely left to legislative discretion and action. The legislature having provided for the very state of things here in controversy, the counsel has not been enabled to discover anything in the constitution of Mississippi interdicting the authority of the legislature on the subject.
4. The constitution nowhere requires deeds to be recorded at all, nor did (as it is believed) the common law. The legislature might dispense with the recording of deeds altogether; or they might have them recorded by a notary-public, city magistrate, or by any private citizen by name, and there would certainly be nothing unconstitutional in it. But the legislature have thought proper to give the recording of deeds to the clerks of probates, and in certain contingencies, to the clerks pro tem. of that court, to be appointed by the judges of probates. There cannot, it seems, be anything wrong in this; and it is certainly the manner in which the discretion of the legislature has been exercised; and nothing is known which would justify the court below, or this court, in saying they have been wrong.
5. The recording of deeds is not an incident of any court, or its jurisdiction. If even it were not competent for the legislature to provide for a clerk pro tem. of the probate court, to be appointed, as to the matters peculiar to the jurisdiction of that tribunal, yet there is nothing in the recording of deeds which can, by any possibility, enter into such considerations.
6. The terms, during the unavoidable absence of the principal clerk, as mentioned in § 7, p. 183, and that in case the clerk shall be at any time unable, from sickness or unavoidable causes, to attend said court, it shall be lawful for the judge of probate to appoint a person to act as clerk pro tempore, who shall take an oath faithfully to discharge all the duties of his office; and for services rendered by said clerk, he shall be entitled to the fees allowed by law to the clerk of said court, as mentioned in § 73, p. 199; cannot justly be limited to the term of the court which made the appointment. It is true, the law requires the court to make the appointment; but the last section defines the tenure of the office to continue commensurate with the causes which made it necessary to make the appointment; otherwise, he could not discharge all of the duties of his office. Again, it is the universal principle, in the construction of statutes, to regard the reason and spirit of the law, and the causes which induced the legislature to enact it. In the matter before us, it was most obviously the motive with the legislature, to prevent an interregnum in the offices, and to hinder a failure of justice. The business confined to the term of the court is not one-hundreth part, in interest and amount, of that which, by the laws, is allowed to be done by the clerk in vacation. If the legislature intended to provide for the matters of less importance only, it appears, they must have been guilty of extreme ignorance, folly or wickedness; the which, this court would reluctantly ascribe to them. This court will give the statute the construction claimed.
7. It is confidently believed, that the law is every way regular and proper, and that there does not exist any possible valid objection to the deed, or the time or manner of its execution, probate, or to the recording of it. But whatever may be the nature of the legal rights or liabilities of Haden and Puller, as to the office, Puller being the incumbent by appointment, discharging the duties of the office under color of title, being the clerk de facto, whether he were clerk de jure or not, all of his acts, so far as the rights of the community and third persons are concerned, are valid. King v. Leslie, Andr. 163; Taylor v. Skrine, 2 Treadw. 696; Jones v. Gibson, 1 N. H. 268, and the authorities there; Keyser v. McKissan, 2 Rawle 139; Bucknam v. Ruggles, 15 Mass. 180; Nason v. Dillingham, 15 Ibid. 170; Fowler v. Bebee, 9 Ibid. 231; People v. Collins, 7 Johns. 550; 7 Am. Com. Law Rep. by Wheeler, 142; Biddle v. County of Bedford, 7 Serg. & Rawle 392-3. Indeed, this doctrine is now regarded as settled, as elementary in principle, and no longer open to discussion.
8. The district federal court of Mississippi was not, nor is this court, competent to declare a state law unconstitutional, which is in conformity with the decisions of the state tribunals; unless some provision of the constitution of the United States has been contravened. As there is nothing in this law in the least incompatible with the constitution of the United States, it was the duty of the court below, and is now the duty of this court, to give effect to the state laws. Jackson v. Lamphire, 3 Pet. 289; Shelby v. Guy, 11 Wheat. 361. If this is not correct, it appears to involve the right of the federal tribunals to enter into the local, the municipal police of the several states, and abolish it a doctrine unprecedented in its assumptions, and one which will find no toleration in this court.
The legitimacy of appointments, elections or qualifications of an incumbent in office, cannot be inquired into, collaterally; but their acts are valid, until they are regularly superseded. If this were not so, the naming of only two of the officers, required to be elected under the constitution of Mississippi, will show us to what infinity of confusion, and in inextricable difficulties, the doctrine contended for by the opposite party would lead. For example: by the third section of the fifth article of the constitution of Mississippi (Alden's Revision, p. 33), the governor is required to be at least thirty years of age; that he shall have been a citizen of the United States for twenty years, and shall have resided in the state at least five years next preceding the day of his election.
Key, for the defendants in error.
1. By the constitution of Mississippi, the act of the 2d of March 1833, of the Mississippi legislature, is void. The case stated shows there was no vacancy in the office. If there was, the constitution shows how the vacancy was to be filled, and that the legislature could not alter it. Therefore, there was no power in the court to make the appointment; and Puller was not clerk of probates, having authority to receive and record the deed.
2. Again, suppose the law valid, what authority did it give? Only to meet the exigency, and act as clerk during the session of the court (one week), this being the only evil the law sought to remedy; and as the power to appoint was only for such specific purpose, and on a particular contingency, such purpose and the occurrence of such contingency cannot be presumed, but must appear on the face of the proceedings. Mr. Justice STORY, and this court, have decided, that otherwise it is a nullity. 1 East 64; 8 T. Rep. 178; 4 Wheat. 77; 6 Ibid. 127; 2 Pet. 523.
3. Again, what authority did it give? Only for the session of the court, pro tempore; as if it had said, till the end of the term. This was all that ought to have been done; all that was necessary; and all that was done. If William P. Puller, therefore, on such an appointment, held over, it was the usurpation of the office, without authority, or the color of authority; and then all his acts are nullities.
4. And this answers the argument and the authorities cited to show that Puller was clerk de facto, though not de jure; and that his official acts, as regards third persons, are valid. He was not clerk de facto under color of right, but a usurper; one holding over after his authority was gone, and there was no color for his official acts. What is an officer de facto, holding under color of right, to whose official acts this sanction is given? 1. Those who hold under an authorized appointing power, but irregularly or improperly appointed, or not duly qualified. 2. Where the office is not full. But here there was no authority to appoint. And if there was, the time of his appointment was over; and he was holding wrongfully, without any color of right. So is 15 Mass.; 5 Yerg. 271; 1 East 79; King v. Corporation of Bedford, Andr. 163. 3. He could not be clerk de facto, because there was then a clerk de jure; and there cannot be both at the same time. Suppose, there are acts done by Haden at the same time (and non constat, and there were not), such acts would be valid. 4. He was not clerk de facto, because he did not take the name of the office clerk pro tempore. The recording law requires the clerk to do the act. Here, it is done by a clerk pro tempore. No such officer recognised by the constitution. 5. Again, if he was clerk de facto, he could only do necessary acts; attend the court. This was all he need have done, and all he was in any way authorized to do, and for a limited time. It was so held in Andr. 166, 173; King v. Lisle, Ibid. 163.
Finally, it is settled by the Mississippi law of 1840. This shows that the legislature have recognised the rights of those with whom the official acts of Puller interfered; have declared his acts void, where they interfered with such rights, and that such rights shall be secured. This is a Mississippi statute, and a legislative construction of it; and the courts there will, no doubt, respect this act of 1840; and this court will not interfere and advise them to nullify it.
DANIEL, Justice, delivered the opinion of the court.

## Notes

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