Keeler v. City of Newbern ( 1868 )

The plaintiff declared upon a special contract for his wages as a policeman in the city of Newbern for a part of the year 1865, at the rate of $75 per month. The defendant relied upon the plea of general issue. The plaintiff offered proof that certain persons were exercising the functions of mayor and councilmen of the city of Newbern in July, 1865, and that as such they employed him to serve as a policeman from that time to January, 1866. The plaintiff produced no charter or act of incorporation of the city, nor did he produce any evidence of the manner in which the said persons were inducted into office; but it was shown that they took possession of the offices in July, 1865, and continued to act as incumbents until March following without interruption. It was proved that they had not been elected, and had never held office in any previous year; and it was admitted that the (506) charter and the laws by which the city was governed required anelection of the mayor and councilmen.

The defendant contended: First, that the plaintiff was bound to show that there was such a corporation as the city of Newbern and that this could be done only by producing the act of incorporation. Second, that the persons acting as mayor and councilmen at the time of the contract with the plaintiff were mere intruders or usurpers, and had no authority to contract debts binding upon the city.

By agreement these questions were reserved, and a verdict was entered for the plaintiff, subject to the opinion of his Honor. The court being of opinion with the defendant, set the verdict aside and ordered a nonsuit. The plaintiff appealed. Corporate capacity must be expressly shown. 1 John. Dig., 416, sec. 1; 3 Hawks, 520.

The acts of persons who usurp office are void. Ang. Am. Cor., 159. As to officers de facto, see ibid., p. 140-144, 361. There seems to be no force in the defendant's first exception: that the existence of the corporation could only be shown by the act of incorporation; because "it was admitted that the city was incorporated, and that the charter and laws required the mayor and commissioners to be elected." This admission dispensed with the production of the charter.

The second exception: that the persons with whom the defendant contracted were never elected to office, and never installed (507) into office, and were mere intruders — is well taken. There are many cases where the acts of de facto officers acting under color of authority are valid, and, in such cases, their regular induction into office is presumed; but certainly there can be no such presumption in this case against the admitted fact that they had never held office before, and were never elected to office, and that the charter requires an election. Against these admissions there can be no presumption, and therefore it follows that they were mere intruders or usurpers, and had no authority to bind the city.

There is no error. Let this be certified, etc.

PER CURIAM. Judgment affirmed.

Cited: Norfleet v. Staton, 73 N.C. 550; Van Amringe v. Taylor,108 N.C. 201.

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