The Ouachita telegraph. [volume] (Monroe, La.) 1865-1889, 1873-08-09

| 519, section 23; A. G3S; 10 "A. 534 !;
Is a. Coz ~ A. SO; 1G Peters Il Ii
| A. 404.
In the Citizens Bank VS.. Bry ct. al,
5 \. 631, it was held that ssthc acts OF
an officer tle .fttcto in the exercise of
tho ordinary functions of his Office arc
valid in respect to the rights of third
persons who may be interested in such
acts.''
In the State VS.. Gilbert, 10 a. 524, a
case directly in point, where the sure
tics of Gilbert opposed the forfeiture Of
his bond on the ground that "Wm. H..
Dinkgrave, who acted in taking said
bond as sheriff, was not sheriff ut the
time he took said bond, never having
taken tho oath nor given bond as rcquir-
ed by law, and being ineligible under
the constitution to act us sheriff." this
Court held that: "Therc is no weight
in the position that Dinkgrave was not
sheriff de .j,or. Conceling that he was
not, it is shown that hc was the sheriff,
and the only sheriff de .Jt,rto, under
color Of title, and his official acts as
such are not absolute nuilitirs, but
must be held good in controversies be-
tween third persons"
In Cash US. Whitwortl, 13 "A. IOl, it
was held that: "Thc objection urged
ny AIc ~ lHc IAOhc VI SllOlS-
ing tho Third Swamp Land Commits.
sioner cannot avail them. He is an
ocfticr:: ::of the State oe .ttcto, acting un-
der color of legal authority, and he is
not a party to this suit. TO declare his
acts null and void by Il sidc-long iudg-
ncnt in Il suit between third persons,
would be contrary to reason as well as
to precedent
In Niahlc vs.. Eornet, 13 n. Go7, it
was held that: "Whcn Il warrant is
drawn by those who arc dc ft,cto dircc-
tors of Il public school of Il particular
district, the treasurer cannot set up as
a defence, that the directors were not
elected and had not qualified as dircc-
tors.''
In the State VS.. Lewis, - \. 33, the
objection was raised that N. J. Scott,
before whom the case was tried, was
not Parish Judge; in disposing of this
objection this Court used the following
language:
"It appears that N. j. Scott performs
the duties of the office of Parish Judge
Of the parish of Claiborne. His copac-
ity tt',d right to perform these duties can
not be inquired into coliotcrdiIv."
This has frequently been decided by
this Court, and in all the cases hereto
fore presented, Il different ruling has
never been made. Here the surctics
on the bond of tho defendant seek to
escape liability on the ground that
Morrison and pickcnS We're not clerk
and sheriff. They attack the titles Of
these officers collatcrally, and in a pro-
ccccing in which they are not parties,
contrary to the we'll settled jurispru-
dcncc of this State. TO decide in this
collateral manner that Morrison and
Pickens are not clerk and sheriff would
be to determine their rights without
giving them hearing orany oPpor-
tunity Of making a defence. No one
should DC condemned without Il hear
ing, nor deprived of Il legal right
without due process of law. Besides
the right to an Office cannot be inquired
into in this State, except in i proceed
ing under the intrusion act or in u suit
to contest an election. The question
cannot be raised by Il nandamus or in
any other way, as has frequently been
decided by this Court. State cX. rel.
Stcrnbcry vs.. Lagardc, 81 a. rs; State
ex. rel. Hero Us. "A. Pilot, ~ A. :}36,
and other subsequent decisions.
In State cN. rel. Nicnc VS.. IIyamS,
~ A. 7l3, where the rclatOr, who wus
commissioned sheriff of the parish of
NatchitochcS, sued out Il nland:,mus to
compel lIyams who detained the keys
of tho parish prison, to deliver them
to him, and where the respondent
denied, in his answer, that the rclator
was legally elected sheriff, and claimed
the right to hold over under his form
cr commission until Il successor could
be legally elected, this Court held:
"That the act of 1916 prcscribes tho
mode OF proceeding in contcsting the
election of Il sheriff. The Supreme
Court is not the tribunal to entertain
such IL contest, and cannot ga Gehiyd
tie commission To examine me p,'OCT upOi
Which tie GOrril,O,' UctcH IN issuH,y it,"
This was also decided in State OK. rel.
Bicnvcnu vs. Wrotnowski, II a. 1876,
and in several later decisions. Now
if the court could not go behind the
commission to examine the proof upon
which the Governor acted in issuing
it, in the case against IIynms, ~ a.
7l9, where the parties in interest were
before the court, how can the court
look behind the commissions of Gov
crnor Warmoth issued to Morrison and
IickcnS on ith December, 1872, in this
proceeding where the question is only
presented cOlIatcrally and where fin,