The record-union., 1893-10-14
Opinion of Freeman g. Bates.

Inc first opinion, from Freeman q
Bates, was read. 1t is as follows:
IN giving this opinion, we wish 1t to be
distinctly understood that we have no per-
sonaI knowledge of the various proceed
1ngs In and about the formation and
adoptlon OF the charter, and that the only
uregularlty which has been called to our
attention is in respect to the Board of
tfeehoIders. Some of the members OF
that board, as we understand, did not
possess the constitutional qualifications
emitting them to be members thereof,
Tor the reason that they were not free
holders, or had not been qualified elect
ors for five years prior to their election.
one who fills public office without be-
Ing rightfully entitled thereto, or with
out possessing the qualifications pre-
scrlbed by law, is usually called an officer
de JGct0, and his acts while in possession
OF such office are valid as against third
persons.
Mechem on Public officers, Secs. 327
to $50; Hamlin vs.. Kassafer, 10 Or, 356;
. Am. St Rep, l76; Wilcox VS.. Smith, D
Wend., 231; q Am. Dec, 2l3; Mallet VS..
Uncle Sam. New, 1S8; 80 Am. Dec, 4S4;
State VS.. Carroll, SO Conn.,, 449; 9 Am.
Rep, 409.1
This rule has been applied in many in
stances in which it appeared that the ottl-
Ger was ineligible to the Offices (Salteries
VS.. San Francisco, % Cal, 319; st. Louis
Co. VS.. Sparks, 10 Mo-, III; 10 Am. Dec,
355; Hawver VS.. Seldenbridge, w. Va,
274; 81 Am. Dec. 532; barrow VS.. People,
S Colo, 4l7), and in some cases where
the law under which he acted or was ap-
pointed was subsequently declared un-
constitutional. Brown VS.. OConnell, 80
Conn.,, 432; 1 Am. Rep, SO; Donough VS..
Dewey, 81 Mich, 309.)
1t is true that in none of the cases to
W hi0h Wa hau rpfnFroH did fha nI1RGtlOn
arise. as it may arise here. namely, in a
suit In the nature of quo lOGITdIlt0 to test
the right of the city of Sacramento to ex-
ercise municipal functions under its new
charter. II may be possible that the
courts will hold that in such suit the
attack upon the qualifications of the free
holders is not collateral and may there
which there are no decisions necessarily
i'll point and in which anything we may
say is only our personal opinion. 1t is
our Judgment, however, that alter the
persons elected as freehOlderS have acted
as such without objection, and have
formulated charter, which has received
the approval both of the citizens of the
city and of the requisite number OF
members of the Legislature, it is too late
to go back to the first act and undo
the whole by proving that few Of the
members of the Board of F'reeholders
were disqualified from that office.
The formation of the charter was sane
toned by Constitutional Amendment No.
Is, adopted March 10, 1887, submission
OF which to the people was authorized by
a statute approved on the 18th day of the
same month. 1t is necessary that all the
Acts required by this amendment in re-
spect to the mode of submitting the char
ter to the voters of the city be substan-
TALLY performed. and if not so performed,
the fact that the charter had been approved
by the Legislature does not cure substan-
tial omissions; People VS.. Gunn, S5 Cal,
248; Oakland p. Co. VS.. Hilton, 90 CAL,
5I2, Koehler VS.. Hill, 90 Iowa, $40; but,
as we are not advised of any defect in the
proceedings after the charter was adopted
by the freehoIders, we assume that they
were regular, and as we think the qualifi-
cations of the persons who acted as free
holders cannot now be questioned, our
opinion is that the charter is valid.
FREEMAN 81 BATES.