Rochester & Genesee Valley Railroad v. Clarke National Bank , 60 Barb. 234 ( 1871 )

By the Court, Talcott, J.

A motion was made in each of the above entitled actions, that the same be discontinued, upon the alleged ground that the same was brought by the attorney of record therein, without the authority of the plaintiff. On these motions the appellants sought to sustain the allegation of want of authority to bring the actions, by showing that the board of directors of the plaintiff, and the officers under whose authority the attorneys for the plaintiff acted in bringing the actions, were not legally and duly elected, or, at all events, that another set of directors and officers, whose alleged title the defendants undertake to set up, were the officers defacto of the corporation.

It is probably doubtful whether such questions as are sought to be presented on these motions, can be properly reached and determined upon motions of this character.

Certainly a determination that the one or the other set of these rival claimants to the offices was lawfully entitled, could not have any binding effect upon the claimants, or determine the question as against either of those parties.

The counsel for the appellants, however, insists that it is not necessary to determine who is rightfully entitled to the offices which are in dispute, and claims that upon the evidence in the case, the board of directors of which Charles Q-. Miller is president, is the board of directors de facto, and as such entitled to control and manage the affairs of the company, to the exclusion of the rival board. An examination of the affidavits and other papers submitted on the appeal, shows that each party has possession of some of the books and papers of the company, and each assumes to be' in possession of the offices, and acts upon the assumption of such possession and title; so that it would be quite difficult to determine, if that were necessary, that either party, or if either, then which, was in such actual possession of the offices as to constitute such party, for ■ legal purposes, the officers de facto of the corporation plaintiff.

It seems to us, however, that there is a consideration which renders it unnecessary to determine the conflict between the parties as to who is in the actual possession of the office, as a matter of fact. It is understood to be conceded by the counsel for the appellant, that not only the general term of the seventh district, but the Court of Appeals, upon quo warranto proceedings, have determined that the board of directors of which Charles G-. Miller is president, are not rightfully in office, and this, it seems to us, disposes of all question as to their title, whether as officers de jure or de facto.

To constitute a person an officer defacto, a mere claim to be such officer, and exercising the duties of the office, are not sufficient. It is well settled that there must be color for the claim, and a colorable title to the office. (Wilcox v. Smith, 5 Wend. 231. People v. White, 24 id. 520. People v. Peabody, 6 Abb. 228.) As was said by the Supreme Court of Connecticut, “ an officer de facto is one. who exercises the duties of an officer under color of right, by virtue of an appointment or election to that office. He differs on the one hand from a mere usurper of an office, who undertakes to act as an officer without any color!of right, and on the other from an officer de jure, who is in all respects legally appointed and qualified to exercise the office.” (The Town of Plymouth v. Plymouth, 17 Conn. 585. The King v. The Corporation of Redford Level, 6 East, 356.)

The reason for sustaining the validity of the acts of persons who are in possession of and exercising the powers and performing the duties of an office, under color of authority, so far as third persons are concerned, is, that such third person cannot be supposed to know all the facts, or be able to determine with any certainty the question of legal title.

When the color of authority notoriously ceases, the reason for sustaining their acts as the acts of officers defacto ceases. (The King v. Corp. of Bedf. Level, supra.)

We think that when by a judgment of the court of last resort, in a direct proceeding to determine the title of officers defacto, it has been adjudged that they have no rightful title to the office, but are mere usurpers, then, at least as to all who have notice of such proceeding and judgment, the color of authority has ceased; and this without regard to whether anybody else has been inducted into the office or not. As officers defacto there must be at least a presumption that they are rightfully in office. Such presumption cannot be said to exist after the decision of a competent tribunal to the contrary. To hold that persons who, according to the decision of the court having jurisdiction to decide so as to bind the parties and the public, are mere usurpers, may still exercise the powers and discharge the duties of the usurpers’ office, is to deprive the judgment of ouster of all force or effect.

This leaves, in this controversy, the other party, composed of Hammatt and his associates as the only parties' who can be said to have any color of title.

It is stated by the counsel for the appellant that the papers upon these motions were -held by the justice before whom they were made until the decision of the Court of Appeals referred to, when the motions were denied, upon the assumption that that decision disposed,.in effect, of the motions. We think, for the reasons above stated, this was correct.

It is stated that an appeal has been taken from the decisión of the Court of Appeals to the Supreme Court of the United States. That circumstance cannot absolve us from the duty of following the decision. By this court the decision of the tribunal of last resort of the State must he considered the law- of the land, until it shall have been reversed.

[Fourth Department, General Term, at Rochester, September 4, 1871.

The order appealed from, in each case, must be affirmed, with $10 costs of appeal.

Mullin, P. J., and Johnson and Talcott, Justices.]