Ex parte Lane , 12 Ala. App. 232 ( 1914 )

BBOWN, J.

The statement of facts on which the case was disposed of by the judge of the county court shows that Traweek, the acting city recorder, was acting by authority of an appointment made by the president of the board of city commissioners, under an ordinance authorizing any one of the commissioners to appoint a temporary recorder, pending the election by the commission of a regular recorder; that the court presided over by Traweek was held at the usual time and place of holding the recorder’s court of the city of Tuscaloosa; and that the proceedings in the recorder’s court were regular, resulting in the defendant’s conviction of the violation of a city ordinance. It is insisted, however: (1) That Traweek’s appointment as recorder-was without authority of law, and therefore the judgment of the recorder’s court presided over by him is void and subject to collateral attack; and (2) that the ordinance under which the defendant was convicted is void, because the ordaining clause did not follow the form prescribed by section 1252 of the Code, which prescribes the form as follows: “Be it ordained by the city (or town) council, of-as follows.” The question of the validity of Traweek’s appointment as recorder is one not necessarily presented in this case. The authorities a.re practicaly unanimous in bolding that, where there is a legal- office and the duties of that office are exercised by a person under color of authority, he is a de facto officer, and his acts are valid in so far as they concern the public or third persons having an interest in the thing done; and it has been expressly held in this state that, where a de facto- judge acting under a void appointment holds a court at the time and place prescribed by the statute, the judgments of that court are valid, and not subject to collateral attack.—Ex parte State, ex rel. Attorney General, 142 Ala. 88, 38 South. 835, 110 Am. St. Rep. 20. On this authority, we are bound to hold that Traweek was a de facto recorder, and, the recorder’s court having been held by him at the time and place provided by law, the judgment of that court is valid, and not subject to collateral attack.

The judgment of the recorder’s court, not being subject to collateral attack, is conclusive as between the parties thereto, as to the validity of the ordinance, and its validity cannot be brought into question in this case.—Drinkard v. Oden, 150 Ala. 475, 43 South. 578; Cooley on Constitutional Limitations, 80, 81; Wood v. Wood, 134 Ala. 557, 33 South. 347; Bray v. State, 140 Ala. 172, 37 South. 250.

The order of the trial judge is affirmed.

Affirmed.