Hawke v. McAllister ( 1894 )

SLOAN, J.

While concurring, I deem it necessary, in order to more clearly present my views of the case, to add something to the foregoing opinion. The complaint shows that the plaintiff, whether eligible to the office of supervisor or not, received his certificate of election, and thereafter qualified under the law and assumed the duties of the office. He became thereby at least a de facto officer. The statutes do not confer upon the board of supervisors authority to pass upon the eligibility of its members, nor to declare a vacancy by reason of the ineligibility of any member. There was therefore no power in the remaining members of the board to declare a vacancy by reason of McAllister’s ineligibility, and their act in electing Nichols to fill such assumed vacancy was utterly void. Such a void act could not operate to oust Mc-Allister from his office. Nor did Nichols become by such act, and by the recognition of the other members of the board, a de facto supervisor. He was a mere usurper. McAllister still remained a de facto member of the board. If McAllister was the de facto officer, he was entitled to recognition as such by the other members and by the clerk of the board, and had a right to the writ to compel such recognition. In re Delgado, 140 U. S. 586, 11 Sup. Ct. Rep. 874.