The Manitowoc pilot. [volume] (Manitowoc, Wis.) 1859-1932, 1884-05-01

| or attempted exercise of that power. After the
/ law became operative, / think there could be no
| want of power though there might be an irregular
or defective exercise thereof, failure to COM
ply with the conditions upon which its legal ex-
| ercise depend. But SO long as the law was unre-
| pealed and Its object was unaecomphshed, the
| power remained. The submission OF propositions
/ to the voters and the calling of elections were
| acts done III the execution of power, not acts
| done without power. The execution may have
| been defective irregular. But the imperfec-
| tions IN the acts, not III the power. (Super-
visors VS.. Schenck, Wallace, 7sf.) FaEt Of poger
to issue the bonds Is always defense If 1t be
/ proved. And II Is defense that Is always open;
| there Is no estoppel as TO that: and 1t makes no
| difference by whom the bonds are held (St
/ Joseph Township VS.. Rogers. 10 Wallace, 64i
| 6j9. But irregular or defective exercise of an
| admitted power cannot be shown against bona
! ffe holder, when the bonds recite that the exer-
/ else thereof has been regular and perfect. The
recital estops the municipality to contradict II
| by proof. knox vs.. Aspinwal1, II How. 5S9.)
And in the abse7ce of recitals recognition of the
validity of the Ids and payment of interest for
a series of years sop the municipality to defend
On the ground of detects or irregularities. (Rog-
ers vs. Burlington, Wallace 654; Bissell JEFF
fersOnvlIe, y How, 299; Supervisors VS.. Schenck
| suDra.l
the fact That the stock received and has been
retained, and that interest has been paid during
many years, seem to me to render immaterial the
point that the board which called the elections
unconstitutional, If Its acts In the premises
were merely exercise of power and were IN eff
feet but defects irregularities within the
Ing OF tlie UetiSloD-. as L DSlltNe they were.
supervisors VS.. Schenck, supra.
But though 1t should be held that the submits
sion of the propositions to the voters and the
calling of the elections, matters involving
the question of the power itself rather than of its
exercise or execution, IT would not follow that
the bonds are void. Those preliminary steps
were taken by board which consisted of seUen
members chosen under a special and unconstitu-
tonal act of the legislature, when 1t should have
consisted of three members chosen under the gen.
eral law. And the Supreme Court of state
had decided, In the latter part of the year 1859
that d similar special act for Washington County
was unconstitutional. Estate ex rel. Peck VS. Ri
ordan, a Wis, 49, That decision was rendered
in a case which was brought for the express pur-
pose or trying title to office; and the only point
decided was that the act under which the men,
bers OF the board We're elected IN conflict
with the constitutional provision requiring the
system of county government to be uniform
throughout the state
After that decision had been pronounced the
unconstitutional board of this county continued
to exercise official functions, and took the prelim-
mary steps above mentioned III the railroad pro-
ceedIngs.
But the decision in State VS.. Riordan did not
abolish the political body known as the county
board nor affect its legal existence. The office
and functions of the body were unimpaired; the
decision went to the question of membership, to
the title of the incumbent, not to the legality of
the office. The general law establishing county
board of supervisors, and defining its powers and
duties, continued IN force notwithstanding the
decision. The office therefore still existed, al
though the title of its incumbent was no longer
valid.
II Is however Well settled that q person who
holds office by election or appointment under an
unconstitutional law, has good color of title to
the place rntll the law has beendeclared uncon-
stltutonal by the courts; and his official acts and
authority are to be recognized and obeyed. and
are valid, in so far as they concern the public
and cannot be called in question in collateral
proceedings.
Brown VS.. O'Connell, So Conn., 1872.
State vs. Carroll. 81 Conn.,. 49,
so too, person holding office under an ap-
though the holding be Illegal and void for want
OF power IN the appointing electing body or
because the law authorizing the appointment or
election had not taken effect at the time when the
officer was chosen, is an officer de fdcto and his
acts as such are valid until judgment of custer
| goes against HIM or he Is succeeded by some one
| else
In re Boyle, 9 Wis, 26l.
LAYER VS.. McGlachIin, rs Wis. 1854.
State Bloom, II Wis. 521
| State VS.. Goldstuecker, 40 Wis, 124.
{; n W; Ry. Co., VS.. Langlade Co. ct al,
50 Wis 626.
| The seven individuals who composed the coun-
| ~ board of this county in March, 1870 were
| indicted into office under a law which gave them
good color of title to the offices which they as
| sumed to fill; and the powers and duties of the
county board under the general law remained to
be exercised after the decision in State vs. Rior-
| dan pronounced as well as before The
seven still continued to assume and exercise those
| powers and duties, and the people of this county
| acqulesced IN such exercise. No judgment of
| custer declared against them, no successors
| we're chosen TO take the three lawful places on
| the board. The Office and the incumbent were
| not Doth oVerthrown by that decision. The num-
Der OF officers and their title to the places We're
| affected thereby, but not the board And so
I long as the community permitted the functions
| of the board to be performed by the seven per-
sons who had formerly exercised the same and
! general recognition and obedience were yielded
| TO their authority, those persons Were, L think,
officers dc Tdct0 and their official acts We're bind
| ing upon the community which recognized them
| as such. And think that their acts calling the
elections and su Emitting the propositions of the
railway companies to the voters, having been ac-
! guessed IN and acted upon by the voters them
selves, were the acts of officers de fqetO, and
| not be questioned by the county
L am inclined to think, too, that of the seven
! supervisors then on the board, three-being the
number to which the county was entitled under
| The general law-were elected at such times and
! IN such manner as to make them officers de jurP
And of these three majority voted in favor OF the
| action taken by the board
The conclusion that have reached as to the
bonds, upon the whole case, is that in the hands
of bona tde holders, the county of Manitowoc hi 5
| no legal defense to those instruments.
Dated April -, 1884.
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