Short v. Symmes , 150 Mass. 298 ( 1889 )

C. Allen, J.

If one who has assumed to interfere with the person or property of another is sued therefor, and attempts to justify his act on the ground that it was properly done by him as a public officer, it is for him to show, not merely that he was an officer defacto, but that he was duly and legally qualified to act as such officer. This has been intimated heretofore by this court, in cases where the question was not directly presented; Fowler v. Bebee, 9 Mass. 231, 235; Petersilea v. Stone, 119 Mass. 465, 468; Sheehan’s case, 122 Mass. 445, 446; and the doctrine is supported by a great weight of authority. Pooler v. Reed, 73 Maine, 129. Stubbs v. Lee, 64 Maine, 195. Brewster v. Hyde, 7 N. H. 206. Blake v. Sturtevant, 12 N. H. 567, 572. Cummings v. Clark, 15 Vt. 653. People v. Nostrand, 46 N. Y. 375, 382. Green v. Burke, 23 Wend. 490, 503, 504. People v. Hopson, 1 Denio, 574. People v. Weber, 86 Ill. 283. People v. Weber, 89 Ill. 347. Gourley v. Hankins, 2 Iowa, 75. State v. Dierberger, 90 Misso. 369. Venable v. Curd, 2 Head, 582. Miller v. Callaway, 32 Ark. 666. In like manner, when one sues to recover fees due to him as an officer, he must show that he is an officer de jure. Dolliver v. Parks, 136 Mass. 499. Phelon v. Granville, 140 Mass. 386.

But it is urged that an officer defacto is prima facie an officer de jure, and that, where the facts relating to the appointment to office do not fully appear, an inference of its validity may be drawn from proof of his having acted as such. However this may be in a case where the party seeking to justify his act produces evidence that he publicly acted and was recognized as an officer in other instances, before or even after the act which is brought into question, it certainly is not sufficient for him to show merely that he assumed to act as an officer in doing the very thing which he seeks to justify, or in other proceedings which are only incidental thereto. If that were so, his authority to do the act might be inferred simply from his having assumed to do it. State v. Wilson, 7 N. H. 543. Hall v. Manchester, 39 N. H. 295. Goulding v. Clark, 34 N. H. 148. Wilcox v. Smith, 5 Wend. 231. State v. Carroll, 38 Conn. 449. 1 Greenl. Ev. §§ 83, 92. In the present case, there was no evidence sufficient to warrant a finding that the defendant was a police officer.

Exceptions overruled.