The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1896-11-20
De JURE LIMITATIONS.
De Facto Officers Acts Only
Valid With Respect
to Strangers.
CANNOT SUE FOR SALARY
Full Text Of the Supreme Court
Decision in the Case Of City
Attorney Claimant Erwin.

u VIC 1dcto DOafu cannot create a uS Jufe
| officer.
The charter of Jersey City provided for
the appointment of single person as
city Attorney; two persons acted IN that
capacity as de facto officers; held, that
while the acts of each were valid with
respect 10 strangers neither could main
tain suit for the official salary.
Mayor and "A of Jersey City ads.
James S. Erwin.
John L. Keller and Charles L. Corbin
Tor the plaintiff below.
Spencer Weart and William D. Ed
wards for defendant
Argued before Oh. Jus. Beasley and
Dixon and Garrison. J. J.
Fhe opinion was delivered by Beasley,
Ch. jus. This suit was brought by Mr..
Erwin, the plaintiff in the suit, to re-
cover the salary which he alleges to be
due to him for his services as the at
torney OF Jersey City.
BY the institution of such an action the
title OF the plant fl is put in question, as
holders of Hudson, II Vroom 279.
Upon this subject these undisputed facts
appear in the evidence, viz: that the
plaintiff below, Erwin, was elected to. the
Office Just. mentioned by the Board of
Finance Of Jersey City. in which body
the right to I'll the Office was vested by
the statute; that at such election four
the number requisite for the legality of
the proceeding, and that at the time of
tne LIansactioq quo warranto was
pending in the Supreme Court challenging
the t4tse Of one of the members so vot-
ing, ana that subsequently in that course
q law a judgment resulted declaring that
the member referred TO was a usurper
and ousting him from his position
By the legal force of this proof It is
conclusiVely shown that the plaintiff was
appointed by a board. that so far as the
junction IN question is concerned, he had
no legal authority to act in the premises
Notwithstanding this plain defect in his
title the defendant entered upon the office
OF attorney of the city, and performed
sundry of the duties appertafning to that
pest. 1t is also shown that during the
period within which the services just men
that Mr. Weart, who had been the pre-
eeding municipal attorney, claimed the
right, at the instance of the Mayor of
the. city. to continue in Office and accord
ingly proceeded to perform a considerable
part of its functions. l do not find any
legal justification for this continuance in
taken each of these claimants stand ore
ciseiy upon the same footing; they were
each clothed with official insignia and
were respectively acknowledged as Off
GERS Dy certain OF the heads of the city
departments. Under these circumstances
It IS plain that in their dealings with in
dividuals each Of these counsel was a
de facto officer and beyond all doubt such
dealings. were and are valid The rule
upon this subject Is not open to the least
question in this State.
But this is not the problem now to be
solved for our inquiry relates NOT to the
standing of the plaintiff with respect I'd
indlv, ,duals. but with respect to the com
munity ltseif. Claiming the salary in dis
pute, what is the plaintiffs status against
the city?
On the argument it was contended that
s ne an IS N niaar this proceeding to be regarded
no semblance of strength in that position
we nave seen that the Board from which
ne derives his title. was Illegally con
de facto and not as de lure BODY. Can
the appointee of such a board prevail in
q court of law when he sets up that he
mas legal title to the Office so illegiti-
The question is an important one and
has been considered with corresponding
care.
The doctrine that legal validity attaches
to the acts of public officers who. having
am official semblance, are in fact desti-
sufe OF al authentic title, is true only
SO far as there Is public necessity for
us prevalence and no further If in the
ordinary affairs Of business all persons
were bound to verify the titles Of public
officials before they could rely upon their
acts the burthen would be intolerable
IT Is not too much to say that con-
siderable part of such business could not
rule. 1t Is always to be deprecated that
the act of usurper of office should have
legal sanction conferred upon it, but
great public Inconvenience that its re-
lection would introduce. To this extent
and ON this ground the law legalizes the
fore, that public utility is the sole reason
that can be assigned in favor of the
prevalence OF the doctrine, and it is thus
manifest that such doctrine is a judicial
creation, and consequently. it Is NOT 10
be applied in the regulation of any case
that does not plainly fall within the prin-
elple IN which it has. originated. Unlike
matters proceeding from legislation, in
q case thus conditioned there is no place
for the maxim voluntas stat pro ratione.
and ON this account the reason for the rule
Of fAS
coterinsnous
In the light of this view it becomes
conspicuous that the general rule, ac-
knowledged on all sides, that gives Off
cacy to the acts of the officer de facto
cannot have the effect of investing the
appointees of de facto boards with de jure
for perpetuating the wrong done by such
an appointment, while the evils cf sueh
a principle are serious and multiform;
its Immediate result being to offer
strong incentive to usurpa ation, and to
prevent the public from having a voice in
the selection of its own officials And |
iiiegitimate, titles of this Character. when
properly put in ISSUE cannot be a detri- |
ment to anyone but to the holders of
Of ofef These nraa c1am t;, 1a the sIblity
Iected in the case of The People v AL
bany %, Barb. SA, the court saying that
against the people in an action al the
suit of the people to try the title 70 fhe
office. The doctrine in respect to off,
GERS de facto only applies to and in favor
OF third parties who have trusted to the |
apparent title of an officer The rationale |
of this subject seems to me so plain that
it is deemed useless to discuss it further
The question thus disposed of has not |
heretofore been directly before the courts
of this State for consideration and al |
though there may be a few judicial ex- |
pressions to be found in the reports in |
dicative of opinions somewhat inconsist- |
ent with the view here taken such ex- |
pressions are mere sobiter dicta and as |
such are not entitled to much weight. |
The case of Farrier ". Dugan. is Vr 3S5. |
which was relied on by the counsel of |
the plaintiff is not in point. In that in |
stance the moot point was whether the |
organization of a Board of Chosen Free
holders had been illegalized by the ad-
mission pro hac vice as presiding officer |
of q person who had been. but who was /
not then. chosen freeholder, and it was |
decided that this evident irregularity did !
not prevent the board so constituted from |
electing an officer de jure the president /
of the meeting taking no part in the T
act
Having thus concluded that the plaintiff /
cannot be accredited as an officer de lure
q suitor in the pending case?
Whether an officer de facto can sue fer
his salary +. subject that has never /
been 5udiciaily examined In this State.
IN New Ycrk IN the case of Dolan "
Mayer, etc. 6S N. Il, "a. it was decided T
that such an action was not sustainable.