Evening journal., 1910-07-12
CITY WITHOUT
GOVERNMENT
lconlInued from FIea. Page.l

TO make those relying on his acts
chargeable with such knowledge.
/ persons relying upon such acts will
not be protected. The court goes on
10 mold that sufficient notice 70 warn
third persons or the public will be
given by the resignation of the Off
GER the abolition of his office, the re-
fusal of the body of which he claims
! TO be member TO recognize him,
! Tor the Judgment Of a court against
/ the title OF the officer.
In the case OF Rochester and Ge-
nesee Valley Railroad Company VS..
Clarke National Bank (60 Barbour
234 the court held that officers Of a
corporation ceased to be officers de
facto after a judgment Of the court
OF last resort adiudging that they had
no rightful title. and this. although
this judgment of the Court OF APP
ueals OF New York had been appealed
TO the Supreme Court Of the United
States and that appeal was pending.
lt also does not appear from the
record that judgment Of custer had
actually been entered and served. but
merely that the Court of Appeals had
rendered its decision. The court said,
at p. 249
As officers de facto there
must be at least a presumption
that they are rightfuliy in office.
Such presumption cannot be said
TO exist after the decision of a
competent tribunal 70 the con-
trary. To hold that person who.
according to the decision Of the
court having jurisdiction TO de-
eide so as TO bind the parties and
the public, are mere usupers, may
Still lexercise the powers and dis
charge the duties OF the usurp-
ers's Office, ia 20 deprive the iudg-
ment Of custer Of all force or ef-
feet.
The leading case on the subject
which is 80 described in Mechem on
Public Officers, Section 3lS. and
which is also cited in most Of the
cases on the subject IS State VS.. Car
roll t3S Conn 449). The court there
lays down the rule that a de faoto
officer Is one whose acts arc valid
where the duties Of his Office were
exercised
under color Of an election or
ali appointment by or pursuant
to public unconstitutional law.
before the same is adjudged to be
such.
We have been unable TO find any
case, where the acts Of a person elect
cd under an unconstitutional statute
done after the court had held the act
unconstitutional we're sustained, as
those Of a de facto officer, and under
the general doctrine as above set
forth, and the rule laid down In State
vs.. Carroll, such acts would not be
sustained.
The cases before the Supreme Court
of Delaware were brought to review
the action of the Council at winning
ton on two election contests arising
from the 1909 election The Council
had sustained the CONTESTANTS and the
plaintiffs in the two suits brought
oertiorari proceedings to review the
action of the Council The court
finding the statute under which the
election was held unconstitutional,
/ therefore set aside the proceedings
upon the ground that he City Council
claiming to have been elected under
the authority Of an unconstitutional
statue had no jurisdiction to hear the
contestants. and that as the election
was void no contest growing out Of IL
could be considered. 1t is true thai
only two Of the city officers were be-
fore the court as parties to these &C
tions, and that no Judgment of custer
had been entered against any of the
city officers so far as we are inform
ed. II has, however been deter
mined by the highest court of the
Staet that the election OF 1903 was
void, and that the City Council claim.
ing TO be elected at such election had
no jurisdiction to hear or determine
election contests.
Thus It appears. that although the
members of the Council were defactC
officers not all OF their acts, even be.
fore the decision of the court. will bs
sustained, and there Is nothing to in
dicate that any Of their acts done af-
ter the courts decision will be bind
ing
Very truly yours.
CSignedl Hawkins, Delaheld and
Longfellow-