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Board of education; de facto corporation; acts of, binding as against bona fide purchaser of its bonds. 254 (S. Dak. 1894.) Whether the election of the board of education of the city of Huron was in compliance with law or not is immaterial. The members elected immediately took charge of the schools and school property, and continued to discharge all the functions of the board of education, and when the bonds in controversy were issued the said board was, in any event, a de facto corporation, exercising under the law all the powers and functions granted to corporations legally organized, and, as against bona fide purchasers of the bonds, its acts as a de facto board of education, if within the powers granted to a board legally organized under the law, are binding on the defendant corporation."

"When a municipal body has assumed, under color of authority, and exercised, for any considerable period of time, with the consent of the State, the powers of a public corporation, of a kind recognized by the organic law, neither the corporation nor any private party can, in private litigation, question the legality of its existence. Ashley v. Board, 8 C. C. A. 344, 60 Fed. 55, 63; County of Ralls v. Douglas. 105 U. S. 728, 730, 26 L. Ed. 957; Coler v. School Township (N. Dak.), 55 N. W. 587; Clement v. Everest, 29 Mich. 19; Burt v. Railroad Co., 31 Minn. 472, 18 N. W. 285, 289; State v. Carr, 5 N. H. 367; People v. Maynard, 15 Mich. 463;. Fractional School Dist. No. 1 v. Joint Board of School Inspectors, 27 Mich. 3." National Life Ins. Co. of Montpelier v. Board of Education of City of Huron, 10 C. C. A. 637, 62 Fed. 778.

De facto county; when acts of officers of, binding on; principle stated; de facto corporation under unconstitutional law. 255. (Kan. 1898.) A county, though not legally organized, if it acts in the corporate capacity of a legally organized county, with the acquiescence of the State authorities and of the people of such county. is a quasi-municipal body, and is bound by its contracts the same as though it had been legally organized.

"And may this countv retain the benefits and improvements it has thus

obtained, and yet deprive those who furnished them, or those who subsequently purchased its warrants, of all right to a return of the money which they invested in them? We think not. In our opinion, there is an established rule of jurisprudence which prevents results so unjust and deplorable. That principle is that the acts of ordinary municipal bodies into which the people have organized themselves under color of law depend far more upon general acquiescence than upon the legality of their action or the existence of every condition precedent prescribed by the statutes under which they organize and act. It is that general acquiescence by the inhabitants of the political subdivision so organized, and by the departments and officers of the State having official relations with it, gives to the acts and contracts of a municipal or quasi-municipal corporation de facto, all the force and validity of the acts of a corporation de jure. The interests of the public which depend upon such municipalities, the rights and the relations of private citizens which become vested and fixed in reliance upon their existence, the intolerable injustice and confusion which must result from an ex post facto avoidance of their acts, commend the justice, and demand the enforcement: of the rule, that when a municipal body has assumed, under color of authority, and exercised, for any considerable period of time, with the consent of the State, the powers of a public corporation, of a kind recognized by the organic law, neither the corporation nor any private party can, in private litigation, question the legality of its existence."" Citing a number of cases.

It was urged that there could be no de facto corporation under an unconstitutional law.

"We are unable to yield our assent to the broad proposition that there can be no de facto corporation under an unconstitutional law. Such a law passes the scrutiny and receives the approval of the attorney-general, of the lawyers who compose the judiciary committee of the State legislative bodies, of the legislature, and of the gov ernor, before it reaches the statute book. When it is spread upon that book, it comes to the people of a State with the presumption of validity.

Courts declare its invalidity with hesitation and after long deliberation and much consideration, even when its violation of the organic law is clear, and never when it is doubtful. Until the judiciary has declared it void, men act and contract, and they ought to act and contract on the presumption that it is valid; and where, before such a declaration is made, their acts and contracts have affected public interests or private rights, they must be treated as valid and lawful. The acts of a de facto corporation or officer under an unconstitutional law before its invalidity is challenged in or declared by the judicial department of the government, cannot be avoided, as against the interests of the public or of third parties who have acted or invested in good faith in reliance upon their validity, by any ex post facto declaration or decision that the law under which they acted was void. This proposition is not without the support of eminent authority. Indeed, we believe it is founded in reason, and sustained by the general current of the decisions of the courts that have considered it."

A number of cases on this proposition are reviewed in the opinion. Speer v. Board of County Commissioners of Kearney County, Kansas, 32 C. C. A. 101, 88 Fed. 749.

Illegal organization of precinct by county officers; no defense to bonds issued for such precinct; bona fide holder.

256. (Nebr. 1900.) To a defense interposed by a county in Nebraska, not under township organization, in an action against it on bonds issued by its board of county commissioners on behalf of a precinct of the county, that the precinct had not been legally organized by the board of commissioners, the court say:

"There is another reason why the defense which we have been considering cannot be sustained. It is that the general acquiescence by the inhabitants of a political subdivision organized under color of law and by the

departments and officers of the State and county having official relations with it, gives to the acts and contracts of those officers on its behalf as a subdivision de facto, all the force and validity of their acts in its behalf as a subdivision de jure. The acts of ordinary municipal bodies organized under color of law depend far more upon acquiescence than upon the legality of their action or the existence of every condition precedent prescribed by the statutes under which they organize and act. The interests of the public which depend upon such municipalities and their various subdivisions, the rights and the relations of private citizens which become fixed in reliance upon their existence, the injustice and confusion which must result from an ex post facto avoidance of their acts, commend the justice and demand the enforcement of the rule that, when a municipal body or a political subdivision of a State or county has, or its officers have, assumed, under color of authority, and have exercised for a considerable period of time, with the consent of the State and its citizens, powers of a kind recognized by the organic law, neither the corporation, subdivision, or any private party can, in private litigation, question the legality of the existence of the corporation or subdivision."

"It may be that if the State or the county, or any taxpayer of this precinct, had challenged its existence, or the right of the county or its officers to issue these bonds, by a writ of quo warranto, or by an application for an injunction, before public interests were affected or private rights had vested under them, the issue of the bonds might have been stayed. The assessor, the justices of the peace, and the constables might have been restrained from exercising their functions, and the board of county commissioners might have been compelled to change the boundaries of the precinct. But no such action was taken." Clapp v. Otoe County, Nebraska, 45 C. C. A. 579, 104 Fed. 473.

Official acts of de facto officers; bonds

authorized by councilmen and signed by mayor after their successors had qualified, but before they had entered upon their official duties.

257. (Cal. 1902.) "Another defense is that Jeter, who signed the bonds, was not the rightful mayor of Santa Cruz. The facts bearing upon this point have been heretofore stated and need not be repeated. The Circuit Court said:

'It is claimed by the defendant that, as it is not shown that the bonds sued on were signed by Wm. T. Jeter before the qualification of his successor in the office of mayor, the plaintiff has failed to prove that the bonds were signed by an officer authorized to do so, and they must therefore be held void, even in the hands of bona fide purchasers, under the rule declared in Coler v. Claburne, 131 U. S. 162. That case is not authority for the proposition that the action of a de facto officer in signing bonds would not be as binding upon the municipality for which he assumes to act as that of an officer de jure; and it seems clear to me that if Jeter was the de facto mayor when he signed the bonds sued on, then such signature by him was a compliance with the ordinance requiring them to be signed by the mayor, and so, also, if he was de facto mayor, and those assuming to act as the common council of the defendant were de facto members of the common council at the time when he and they assumed as mayor and common council to accept the proposition of Coffin & Stanton in relation to the bonds, and directed their delivery to that firm, then such acts upon their part are to be treated, so far as concerns the public and third persons having an interest in what was done by them, as the acts of the de jure mayor and common council of the city. The rule that the acts of a de facto officer are valid as to the public and third per sons, is firmly established, although it is sometimes difficult to determine whether the evidence is such as to

warrant a finding that a particular act or acts, the legality of which may be in issue in a given case, were those of a de facto officer. The contention of the defendant is that Jeter was not the de facto mayor at the time of the signing and delivery of the bonds, nor were the old members of the common council, who continued to act as such after the qualification of their successors, and until after the bonds were delivered to Coffin & Stanton, de facto members of the common council of defendant, after the qualification of their successors. Whether one was or was not a de facto officer at the time when he assumed to perform duties belonging to a public office, is a mixed question of law and of fact. State, ex rel., Van Arminge v. Taylor, 108 N. C. 196; same case 12 L. R. A. 202; United States v. Alexander, 46 Fed. Rep. 728. And in passing upon the question presented by defendant's contention upon this point, it is necessary to first consider what facts are sufficient to constitute a de facto officer. A de facto officer may be defined as one whose title is not good in law, but who is in fact in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper. When a person is found thus openly in the occupation of a public office, and discharging its duties, third persons having occasion to deal with him in his capacity as such officer are not required to investigate his title, but may safely act upon the assumption that he is a rightful officer. Thus it is said in Petersilea v. Stone, 119 Mass. 46S: 'Third persons, from the nature of the case, cannot always investigate the right of one assuming to hold an important office, even so far as to see that he has color of title to it by virtue of some appointment or election. If they see him publicly exercising its authority, if they ascertain that this is generally acquiesced in, they are entitled to treat him as such officer, and, if they employ him

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CHAPTER V.

MUNICIPAL AND OTHER PUBLIC BOARDS AND OFFICERS; THEIR ACTS, PROCEEDINGS, AND RECORDS RELATING TO THE ISSUANCE OF BONDS.

A. Municipal and other public officers have such powers as legislature may confer, and must proceed and act in manner prescribed by the legislature.

B. Proceedings and records of proceedings of municipal officers and boards; purchasers of municipal bonds charged with notice of, when.

C. Other public records and data of which purchasers of municipal bonds must take notice.

The corporate powers of municipal bodies are necessarily exercised by the agency of officers, boards, or other tribunals selected in the manner provided by law and having such duties and authority as the legislature may direct and provide. The legislature may also prescribe the manner in which, the conditions upon which, and the forms of procedure by which, all public officers, boards, or tribunals shall perform their acts and duties, and may also prescribe the records or other memorials by which the proceedings, acts, and determinations of such officials, boards, or tribunals, or other public matters, shall be evidenced, as well as the legal effect of such records as evidence or notice of what they are required to contain.

For instance, when the statute requires official acts or proceedings to be evidenced by the adoption, recording, and publication of a formal ordinance, the adoption of such ordinance in the manner prescribed, and its publication in the manner provided, and for the period required, are generally held to be necessary to the validity of the action or proceeding, especially when the direction is accompanied with a provision to the effect that such action or proceeding shall be void, or such ordinance shall not take effect or be in force, unless so adopted or until so published or recorded; and when the adoption of such formal ordinance is required, a mere resolution or other informal order will generally not suffice.

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