The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1902-07-30
PEOPLE WISH
HIGHEST LAW
IN OKLAHOMA
Men Whom They Elect Are
Officers De Facto
UPPER COURT SAYS so
And Lake" Roberts Sustains
the Upper Court.
UPPER COURT SAYS so

Guthrie. o. T. July 2s.-Attorney Gen
eral Roberts has been receiving inqui-
r:es from different parts Of the territory
relative TO the qualifications of probate
judges. In a number OF counties probate
judges have been appointed and the
statements were afterwards made that
the judges were not qualified. Judge
Roberts. after looking the matter up,
has written an opinion which covers all
phases of the case. The main question
under contertion is section ,. Of chapter
IS. OF the session laws Of the territory
for the year 1895, as to the qualification
of probate judges. After having referred
TO the law in the matter. Judge Roberts
says in part:
After a careful consideration Of the
question I am unable 10 find any reason
why the section inquired about could be
declared unconstitutional or not in full
force and effect in this territory The
language OF the statute is plain and IN
ambiguous. and after careful research
OF the authorities on the subject. I am
unable to hnd any authority holding that
the provision is unreasonable or uncor-
stit' ticnaI"
The section referred 10 is as follows;
THAT IN addition % other qualifications
required # a probate judge. h shah be
a licensed lawyer in good standing. shall
be of the age of . years or over. and
shall have practiced his profession for
at least three years next preceding his
election"
Judge Roberts says further:
i do not want to be understood as
holding that the official acts Of an officer
duly elected and qualified whose quaIih-
cations do not comply with the section
referred TO would not be legal and bind
iEg. In fact. our own supreme court has
held that the acts and decisions Of a
probate judge who was not a lawyer or
even licensed 10 practice law. would be
legal and binding. for the reason that
such person even without these qualifl-
cations would be defacto officer. and
his official acts as such officer could not
be collaterally attacked. The language
Of that decision is laid down in section >
of the syllabi. OF the case is as follows:
Section 2 Where an Office exists
under the law. and a person is elected to
I'LL such Office. and duly qualified and
enters upon the discharge IF his Official
duties, he Is a defacto officer. and his
acts are valid. Notwithstanding the fact
that he may not possess all the neces-
sary qualifications as prescribed by the
statute to I'll such Office.
THE next section OF the syllabi is as
fellows:
Sec. 8. The official acts OF a defacto
officer are recognized as valid on the high
ground Of public policy. and for the pro-
lection OF those having official business
to transact; and the acts of such defacto
cannot be collateraHy attacked Med
ford VS.. Territory. So. Pac. 95s
The meaning ana effect OF the Okla
hOma supreme court decision above quoted
is. that II a person without the qualih-
cations set out insection-2. above referred
to- should be elected to the Office of pro-
bate judge and IS qualified and enters
upon the duties OF the Office. he would be
a defacto judge. and his official acts and
decisions would be valid. and could not
collaterally be attacked. The only way
that the question Of his qualification
could be raised and at least the most
certain and positive way TO rake the
question OF his qualifications would be
by direct action against the officer to
GUST him from office"