Opinion
No. 35544.
March 13, 1944.
1. OFFICERS.
An "officer de facto" is one who exercises the powers and discharges the functions of an office, being then in possession of the same under color of authority and color of title, but without actual right thereto (Code 1942, sec. 4045).
2. JUDGES. Municipal corporations.
One acting as mayor and municipal trial judge under appointment by the Governor was at least a "de facto officer" (Laws 1942, chap. 187; Code 1942, secs. 3765, 4045).
3. JUDGES.
As to the public generally, and as to third persons, the judgment of a special de facto judge stands exactly in the attitude of a judgment rendered by a judge de jure (Code 1942, sec. 4045).
4. JUDGES.
A judgment of conviction in a municipal court presided over by city mayor, who had been appointed by the Governor, was valid as a judgment of one who was at least a "de facto judge" (Laws 1942, chap. 187; Code 1942, secs. 3765, 4045).
APPEAL from the circuit court of Lafayette county, HON. T.H. McELROY, Judge.
J.W.T. Falkner, of Oxford, for appellant.
The question of jurisdiction can be raised at any time, even in the Supreme Court.
Monroe v. State, 103 Miss. 759, 60 So. 773; Quillen v. State, 106 Miss. 831, 64 So. 736; Ivy v. State, 141 Miss. 877, 106 So. 111.
We must admit that if Harrison was in truth a de facto officer exercising the duties of the office, his acts are not subject to attack in a case where he is not a party. Branham Hume was legally elected mayor, and duly qualified as such official, and at the first meeting of the board of mayor and aldermen after entering upon his duties, asked and obtained a leave of absence by authority of Chapter 187, Laws of 1942, which only relieved the party granted such leave of the actual performance of the duties of the office for a fixed time under certain conditions and positively does not create a vacancy in the office. At the same meeting of the board at which the leave of office was granted, a mayor pro tem was legally elected, immediately qualified and entered upon the discharge of the duties of mayor, which duties he continued to discharge until the office was later usurped by Harrison, who was commissioned by appointment of the Governor without authority of law. Appellant says that during the entire time of the proceedings in this case, there was in existence a de jure mayor of the City of Oxford, and a de jure mayor pro tempore. There cannot be both a de jure and a de factor officer serving as mayor at one and the same time, and the acts of a usurper, who would otherwise qualify as a de facto officer, may be attacked collaterally in a case where such pretended officer is not a party.
Cohn v. Beal, 61 Miss. 398; Day et al. v. McCandless, 167 Miss. 832, 142 So. 486.
The office of mayor of a municipality can only be filled by election by the people.
Laws of 1934, Ch. 315.
When so elected and qualified, he becomes a de jure officer without interruption until his tenure of office terminates by death, resignation or his successor is elected and qualified, regardless of any order of the governing authority of the municipality granting a leave of absence from the performance of duties as such official.
When Hume was granted a leave, Elliott, mayor pro tem, was immediately vested with full authority as mayor, and so long as Hume was absent he was under the law a de jure mayor, and hence Harrison, although holding an appointive commission from the Governor issued after the January meeting, was a usurper and was never elevated to the dignity of a de facto officer by simply exercising the functions of the office as police justice.
If by any stretch of the imagination we could say that the leave of absence granted Hume created a vacancy in the office of mayor, then performance of the duties fell to Elliott, mayor pro tem, and it immediately became the duty of the board of aldermen to take steps to call an election to fill the vacancy.
Code of 1930, Sec. 2598.
Until the office was filled by an election, the mayor pro tem was in truth the de jure mayor vested with all powers of the office, regardless of any attempted appointment of a third person by the Governor, who is certainly not vested with such authority.
Code of 1932, Sec. 2410.
We say that the pretended city court presided over by C.E. Harrison had no jurisdiction of either the crime or the person of defendant herein, and the motion of appellant in the circuit court should have been sustained and defendant discharged.
R.L. Smallwood, Jr., of Oxford, for appellee.
The appellant contends that the acts of C.E. Harrison as mayor of the City of Oxford were invalid and the said C.E. Harrison had no jurisdiction to try the defendant and, secondly, that the lower court was in error in dismissing the appeal of appellant and ordering a writ of procedendo to the mayor's court of the City of Oxford to enforce its judgment.
It is the position of the appellee, first, that the appellant has no right to determine the qualifications of C.E. Harrison as mayor of the City of Oxford in a proceeding of this kind because C.E. Harrison was not a party to the proceedings. Harrison had been performing all the functions of the mayor's office since his appointment. He was recognized by the public and dealt with by the public as the mayor of the City of Oxford and performed all the duties and functions of the office of mayor.
Rosetto v. City of Bay St. Louis, 97 Miss. 409, 52 So. 785.
See also Bell v. State (Miss.), 38 So. 795; Powers v. State, 83 Miss. 691, 36 So. 6; Cooper v. Moore, 44 Miss. 386.
Assuming the fact, which appellee specifically denies, that the appellant has the right to inquire into the qualifications and appointment of Harrison as mayor in a criminal proceeding to which Harrison was not a party, still Harrison is a de facto officer and his official acts are valid and cannot be questioned by a person convicted of crime.
Wilson v. State, 113 Miss. 748, 74 So. 657; Miller v. Batson, 160 Miss. 642, 134 So. 567; Code of 1930, Sec. 2899; 22 R.C.L. 558, Sec. 306.
And a mere usurper of an office, without any color of title whatsoever, who has for a considerable time exercised the powers thereof, with the acquiescence and recognition of the public authorities and the public, is a de facto officer.
46 C.J. 1058, Sec. 373.
Appellant was convicted of a misdemeanor in the municipal court of Oxford, Mississippi, before Mr. C.E. Harrison, acting as mayor and trial judge. The only question argued on this appeal in the able brief of appellant, and the only one we decide, is whether Harrison, when so acting as municipal trial judge, was at least a de facto officer. The question is presented under these circumstances: Mr. Branham Hume was elected mayor of Oxford in December, 1942, for a two-year term, beginning in January, 1943. At the January, 1943, meeting of the mayor and aldermen Mr. Hume requested, and was granted, leave to enter the armed forces of the United States for an indefinite time. At the same meeting the aldermen designated Mr. B.O. Elliott, an alderman, mayor pro tem in the absence of Mr. Hume. Mr. Elliott assumed the duties of mayor, but shortly thereafter the Governor of Mississippi commissioned Mr. Harrison as mayor. Mr. Elliott voluntarily relinquished the office and duties of mayor and Mr. Harrison assumed them. Harrison had continued to occupy and perform the duties of such office without contest to and including the time of this trial in March, 1943, and had been accepted and recognized by the public as mayor. Appellant did not raise at his trial the legality of Harrison's acts.
Was Harrison a de facto officer? This court, in Adams v. Mississippi State Bank, 75 Miss. 701, 725, 23 So. 395, 398, adopted this definition of a de facto officer: "An officer de facto is one who exercises the powers and discharges the functions of an office, being then in possession of the same under color of authority, but without actual right thereto." The court then added, "Many authorities of great value maintain that there must be color of title as well as color of authority, and this we strongly incline to think is the sound view." The admitted facts in this case bring Harrison within that definition. His appointment by the Governor was certainly color of title and of authority. It is not necessary for us to, and we do not, decide whether he was a de jure officer under such appointment. See Chap. 187, Laws of 1942, and Section 3765, vol. 3, Mississippi Code of 1942.
Being at least a de facto officer, were the acts of Mr. Harrison void? The opinion in the Adams case answers that, "There can be but one answer to the question, and that is, the judgment was not void. In all the adjudications we have been able to find, there is not a dissenting voice as to the absolute correctness of this answer. As to the public generally, and as to third persons, the judgment of a special de facto judge stands exactly in the attitude of a judgment rendered by a judge de jure, and this proposition rests upon considerations affecting the orderly administration of justice, and the welfare of society at large. We have examined a few cases in which the appointment and qualification of the officer were so wholly irregular and without warrant in law, as to lead the courts to declare the action of such officer voidable; but in these cases, even, the objection to the officer was required to be promptly interposed, and, where the litigants submitted themselves and their rights to the determination and judgment of such officer, they were denied the right subsequently to attack the authority of the officer after an adverse decision, and this appears to us to be reasonable and just." Rosetto v. Bay St. Louis, 97 Miss. 409, 52 So. 785; Alabama Vicksburg R. Co. v. Bolding, 69 Miss. 255, 13 So. 844, 30 Am. St. Rep. 541; Bird v. State, 154 Miss. 493, 122 539; Bell v. State (Miss.), 38 So. 795; Greene v. Rienzi, 87 Miss. 463, 40 So. 17, 112 Am. St. Rep. 449. In the Rosetto case, supra, the court said: "It is a well-settled principle of law that the right of a person to an office, who is in charge of it, performing its functions, cannot be determined, except in a proceeding to which he is a party." Section 4045, vol. 3, Mississippi Code of 1942, reads: "The official acts of any person in possession of a public office, and exercising the functions thereof, shall be valid and binding as official acts, in regard to all persons interested or affected thereby, whether such person be lawfully entitled to hold the office or not, and whether such person be lawfully qualified or not."
Affirmed.