The State v. McFarland.

him to take the bond of said McFarland, and they were without authority and prohibited by law from so doing, or performing any other act as sheriff.

They also allege that no judgment can be taken on the bond or any other action be taken at this term of the District Court, because the clerk and sheriff are without authority to act as aforesaid. Considerable testimony was adduced for and against the rule or motion; the court, however, overruled it, and Leonard, Lawton and Lake, the sureties on the bond have appealed. Morrison and Pickens, the clerk and sheriff, were both commissioned by H. C. Warmoth, Governor, on the fourth day of December, 1872, and it is "admitted that these officers have taken the necessary oaths of office and filed their bonds in accordance with law." It is also "admitted that J. W. Pickens obtained peaceable possession of the office of sheriff of Caddo parish on the twenty-third of December, 1872, and on that day entered peaceably on the duties of said office, and has been continuously in possession thereof ever since, discharging the duties of said office."

It is proved that S. W. Morrison has been the acting clerk of the Tenth District Court since twenty-third of December, 1872, and has continued in the open, undisturbed and continuous discharge of the duties of said office ever since. Also that his immediate predecessor, Samuel C. Wright, voluntarily delivered to him possession of the clerk's office, the books, records, etc.

The question is, are the official acts of the officers valid? Are they binding as to third persons, or are they absolute nuliities? Did the commissions, the oaths, the bonds, and the open, peaceable and undisturbed possession of these offices since twenty-third of December, 1872, give the sheriff and clerk of the parish of Caddo a color of title to their offices, the standing of de facto officers rendering their official acts valid? Under the settled jurisprudence of this State these questions must be answered in the affirmative. This is the jurisprudence of other States of the Union, and also of England. Buckham v. Ruggles, 15 Mass. 183; Mason v. Dillingham, 15 Mass. 171; McInstry v. Tanner, 9 Johnson 135; 3 Abbot's Digest 352, sections 63, 64, 65, 66, 67, 68; United States Dig. (new series) vol. 2, 1871, page 519, section 23; 3 An. 633; 10 An. 524; 13 An. 607; 22 An. 33; 16 Peters 71; 13 An. 404.

In the Citizens' Bank v. Bry et al., 3. An. 631, it was held that "the acts of an officer de facto in the exercise of the ordinary functions of his office are valid in respect to the rights of third persons who may be interested in such acts."

In the State v. Gilbert, 10 An. 524, a case directly in point, where the sureties of Gilbert opposed the forfeiture of his bond on the ground that "William H. Dinkgrave, who acted in taking said bond as sheriff, was not sheriff at the time he took said bond, never having taken the

The State v. McFarland.

oath nor given bond as required by law, and being ineligible under the constitution to act as sheriff," this court held that: "There is no weight in the position that Dinkgrave was not sheriff de jure. Conceding that he was not, it is shown that he was the sheriff, and the only sheriff de facto, under color of title, and his official acts as such are not absolute nullities, but must be held good in controversies between third persons."

In Cash v. Whitworth, 13 An. 404, it was held that: "The objection urged by the plaintiffs to the mode of choosing the Third Swamp Land Commissioner can not avail them. He is an officer of the State de facto, acting under color of legal authority, and he is not a party to this suit. To declare his acts null and void by a side-long judgment in a suit between third persons, would be contrary to reason as well as to precedent."

In Miahle v. Fornet, 13 An. 607, it was held that: "When a warrant is drawn by those who are de facto directors of a public school of a particular district, the treasurer can not set up as a defense that the directors were not elected and had not qualified as directors."

In the State v. Lewis, 22 An. 33, the objection was raised that N. J. Scott, before whom the case was tried, was not Parish Judge; in disposing of this objection this court used the following language:

"It appears that N. J. Scott performs the duties of the office of Parish Judge of the parish of Claiborne. His capacity and right to perform these duties can not be inquired into collaterally."

This has frequently been decided by this court, and in all the cases heretofore presented a different ruling has been made. Here the sureties on the bond of the defendant, seek to escape liability on the ground that Morrison and Pickens were not clerk and sheriff. They attack the title of these officers collaterally, and in a proceeding in which they are not parties, contrary to the well settled jurisprudence of this State. To decide in this collateral manner that Morrison and Pickens are not clerk and sheriff would be to determine their rights without giving them a hearing or any opportunity of making a defense. No one should be condemned without a hearing, nor deprived of a legal right without due process of law. Besides, the right to an office can not be inquired into in this State, except in a proceeding under the intrusion act or in a suit to contest an election. The question can not be raised by a mandamus or in any other way, as has frequently been decided by this court. State ex rel. Sternberg v. Lagarde, 21 An. 18; State ex rel. Hero v. A. Pitot, 21 An. 336, and other subsequent decisions.

In State ex rel. Viene v. Hyams, 12 An. 719, where the relator, who was commissioned sheriff of the parish of Natchitoches, sued out a mandamus to compel IIyams, who detained the keys of the Parish

The State v. McFarland.

Prison, to deliver them to him, and where the respondent denied, in his answer, that the relator was legally elected sheriff, and claimed the right to hold over under his former commission until a successor could be legally elected, this court held : "That the act of 1846 prescribes the mode of proceeding in contesting the election of a sheriff. The Supreme Court is not the tribunal to entertain such a contest, and can not go behind the commission to examine the proof upon which the Governor acted in issuing it."

This was also decided in State ex rel. Bienvenu v. Wrotnowski, 17 An. 156, and in several later decisions. Now, if the court could not go behind the commission to examine the proof upon which the Governor acted in issuing it, in the case against Hyams, 12 An. 719, where the parties in interest were before the court, how can the court look behind the commissions of Governor Warmoth issued to Morrison and Pickens on fourth December, 1872, in this proceeding where the question is only presented collaterally, and where the parties whose title to the offices in question are not before the court?

If Morrison and Pickens, who went peaceably into possession of their offices under commissions from the Governor, and who are admitted to have qualified and given bond according to law, are not, at least, acting de facto officers, under color of title, there never has been a de facto officer in this State.

In my opinion the decree which declares all their official acts absolute nullities, flatly overrules the well settled jurisprudence of this State, practically defeats or destroys the titles of Morrison and Pickens to the offices of clerk and sheriff of the parish of Caddo, without giving them a hearing and an opportunity of making a defense.

It is the first time in the jurisprudence of this State that a title to an office has been successfully attacked collaterally, and it is the first time that a commissioned, qualified and bonded officer of this State has been held to be without title and a usurper, in a proceeding to which he was not a party.

But it is urged that the court is compelled to disregard the well settled jurisprudence of this State, to which I have alluded, because of the passage of act No. 41, approved fifth March, 1873. The title of this act is: "An act declaring it a crime to usurp a public office, and providing the punishment for such offense; providing that if any public officer shall adhere to or recognize any usurper, his office shall be forfeited and considered abandoned, and directing and regulating legal proceedings to have such abandonment and forfeiture declared; authorizing the Governor to declare such abandonment and forfeiture in certain cases, and to remove such officers and to fill the vacancy so made by appointment." Section one provides: "That if any person shall assume or pretend to be an officer of the State, executive, judicial or

The State v. McFarland.

legislative, without authority of an election declared by the returning board constituted by law, or without authority of a commission from the Governor of the State, in case the laws require such officer to be commissioned, such person so illegally assuming or pretending to be a public officer, shall be deemed a usurper. If any such usurper shall attempt to exercise the functions of a public officer, and shall interfere with any public officer in the discharge of his duties, such usurper so interfering shall be deemed guilty of a crime, and upon conviction may be fined and imprisoned at the discretion of the court, or both." I find nothing in this section (and it is the only one bearing on the case) that in any manner alters our rules of practice, and compels this court to disregard that principle of universal jurisprudence which is, that no one should be deprived of a legal right in a proceeding to which he was not a party. Morrison and Pickens were not before the court, and in the statute before us there is no warrant whatever authorizing this court to decide they are usurpers, and all their official acts are absolute nullities. This court has only a limited appellate jurisdiction. It can not determine issues upon which the parties whose interest are affected, were not cited to trial in the court below.

The statute before us does not declare that Morrison and Pickens are usurpers. If it did, it would be unconstitutional, because it is a judicial question whether they are or not usurpers, and the authority to decide it belongs alone to the courts. This statute does not attempt to modify or in any manner alter the rules of practice by which civil and criminal cases are brought before the court; it simply makes it a criminal offense for any person not returned as elected by the lawful returning board, or not holding a commission from the Governor, to assume to be an officer and to interfere with any public officer in the discharge of his duties.

Now if Morrison and Pickens have done anything in contravention of this criminal law, inquiry concerning it can only be had by an indictment or information, according to the constitution of the State. And in order to convict them of the crime of usurpation, the facts presented to the court must bring them strictly within the provisions of the statute. Suppose the question was regularly presented by an indictment, and Morrison and Pickens were on trial for the crime of usurpation under the statute, would it not devolve on the State to show that these defendants not only usurped their offices, but also had interfered with some public officer in the discharge of his duties; also, that they assumed to be public officers without having been returned as elected by the lawful returning board, "or without authority of a commission from the Governor of the State?"

Morrison and Pickens do not fall within the provisions of this criminal statute, because they did not assume to be public officers without

The State v. McFarland.

the authority of a commission issued by the Governor of the State. They obtained peaceable possession of their offices, under the authority of commissions issued to them by H. C. Warmoth, Governor of the State, on the fourth day of December, 1872, and it is admitted that they took the required oath of office, and gave bond according to law. Morrison and Pickens went into office on December 23, 1872, under the authority of commissions issued by the Governor, under the great seal of the State. They were in office, and were recognized by the district judge, long before the statute in question was passed, which was on the fifth day of March, 1873.

If the Legislature had desired to embrace these acting commissioned officers within the provisions of this criminal statute, they would have said so. They would have said, that if any person shall assume to be a public officer, and interfere with any lawful officer in the discharge of his duties, without having been declared elected by the lawful returning board, or without a commission issued by the Governor (not including the commissions issued by H. C. Warmoth, Governor, on the fourth day of December, 1872), such person shall be deemed a usurper, and punished, etc. Will this court extend the provisions of a criminal statute, and hold that officers acting under the authority of commissions issued by the Governor, are criminals, and are punishable under a law which only provides a penalty against persons assuming to be officers without commissions issued by the Governor, or without having been returned as elected by the legal returning board?

Suppose the Legislature had extended its provisions so as to cover the case of Morrison and Pickens, and declared it a crime for these commissioned, sworn, bonded, and recognized officers to continue to discharge the duties of their offices, would that part of the statute be valid and obligatory? Are acquired legal rights thus to be destroyed in the face of article 110 of the constitution, prohibiting the Legisla ture from passing retroactive laws? Is it competent for the Legislature to decide that Morrison and Pickens have no legal title to their offices in the face of that provision of the constitution conferring all the judicial powers of the State upon the courts? I think not. In the case of Downe v. Towne, 21 An., this court held that no man can be legislated out of office, and that a constitutional officer can only be removed by address or impeachment.

Morrison and Pickens hold constitutional offices; they held them before the criminal statute in question was passed. The validity of their titles is not a subject for legislative inquiry; it is a matter alone for the courts to determine. But it is urged that the Legislature bas only made it a crime for these officers to continue to fill their office; this is virtually deciding that they have no titles to their offices, besause the making it a crime for one to hold his property or his office