The Rutland daily globe. [volume] (Rutland, Vt.) 1873-1877, 1877-05-05

tue c0nnlVance-in fact, the actual assist
ance-of an attorney, the municipal court
can do no business, except, perhaps, in the
naturalization line. Some shrewd attorney,
however, may, under section eight of the
act establishing the court, advise his client
to apply to the municipal court for an Or
der directing the states attorney to file an
information against him so that he may be
at once sentenced to the state prison, well
knowing that in such an event Judge of
the supreme court would discharge his eli
ent on habeds corpus But, after all, there
is no particular danger of that, as the
states attorney is too good lawyer to be
caught in this trap.
We judge, however, from the question
being asked that our inquirers have rea-
son TO think that the late municipal Judge
proposes, ifpossible, to bull-doze 1t through,
usurp the office, and claim to act by virtue
of the pretended election of April 25-and
the questions, therefore, perhaps, need
further answer. We, therefore, reply that
any act done by him, as municipal judge,
would be absolutely void. His process
would afford no protection to an officer
serving it; his certificate of naturalization
would not entitle foreigner to vote; his
judgments would have no weight, and the
executions issued thereon would have no
effect to create either attachments on per-
sonal property, or liens on real estate, and
moreover the officer attempting to serve
his writs or enforce his executions would
be tresspasser and liable at law as such.
There is no such person as Judge of the
municipal court of Rutland, and any one
attempting to exercise the duties of the
office is pretender and usurper, and his
pretended acts as such are absolutely void
There is very broad distinction between
the acts of pretended officer who has no
title at all to the office and de f1cto officer
who has a valid election, but who for ineli-
gibility or other causes cannot properly
hold the office. But even in the case of a
de tacto officer, while his acts may be valid
as to third persons and cannot be called in
question in litigation to which he is not
a party, yet he cannot justify his own acts
by the claim that he was de .fdcto officer.
Thus, in the case reported in the
14th Vermont, where it was held
that postmaster although prohibited
by the constitution from at the
same time holding the office of Justice of
the peace was yet de Jacto justice and his
acts were valid as to third persons, yet it
was further held that as between him and
the party aggrleved his holding the office
of justice of the peace under valid cleo
ton would afford 10 justification or excuse
for his acts; and that he would be liable
in an action of trespass for the value of
property attached, or taken in execution,
on process issued by him, and in an action
for false imprisonment at the suit of any
one who was arrested or committed to Jail
on similar process.
AS we have said, however, he is not even
a de tactO judge, but whether he is or not,
the same consequences, to a certain ex-
tent, would follow. In either event, he
would be trespasser every time he at
tempted, by process issued as pretended
judge, to enforce the collection of debt
or the penalty for the infraction of crimi-
nal laws. We do not believe the late judge
is quite head strong enough to take the
course which would result in his being
chosen defendant in suits for trespass and
false Imprisonment.
We apprehend, however, that this I'M
founded claim to the judgeship is not made
for the purpose, or with the expectation, of
doing any business as judge, but solely
with the intention of drawing that little
three hundred dollars from the state treas
ury. But the auditor of accounts stands in
the way of that; and we greatly fear that,
unless there is new election-if, indeed,
it is competent to hold one-the three
hundred dollars will remain in the treasury
and count so much in the reduction of
state expenses. The people of Rutland
are not over anxious to have a municipal
court, but we cannot say as much relative
to the anxiety of individuals to get the
salary.