This is an action upon twenty-nine bonds, of $1000 each, alleged to be the bonds of Shelby County, Tennessee, issued on the 1st of March, 1869, and payable on the 1st of January, 1873, with interest from January 1, 1869, at six per cent. per annum, payable annually on the surrender of matured interest coupons attached; and three coupons of $60 each. The following is a copy of one of the bonds and of a coupon:
"$1000 UNITED STATES OF AMERICA, $1000 Issued under and by A special tax is levied virtue of section 6 of an State of Tennessee. by authority of law upon act of the Legislature of all the taxable property the State of Tennessee, in the county of Shelby, passed February 25th, to meet the principal and 1867, amended on the (Vignette.) interest of these bonds, 12th day of February, collectible in equal annual 1869, and by authority instalments running conferred upon the county through six years, as the commissioners of Shelby bonds themselves mature. County by section 25 of an act passed March 9th, 1867.
Shelby County Railroad Bond No. 176.
Be it known that the county of Shelby, State of Tennessee, is indebted to the Mississippi River Railroad Company or bearer in the sum of one thousand dollars, payable in the city of Memphis on the first day of January, eighteen hundred and seventy-three, with interest at the rate of six per cent. per annum from January 1, 1869, payable annually in said city upon surrender of the matured interest coupons hereto attached.
This is one of three hundred $1000 bonds, all of the same denomination and rate of interest, issued by Shelby County in payment of a subscription of three hundred thousand dollars to the Mississippi River Railroad Company, made by the county commissioners under the authority of the acts above recited, transferable by delivery and redeemable in six years, at the rate of fifty thousand dollars a year, commencing January 1, 1870.
[Seal County Court of Shelby County, Tenn.]
The trustee of Shelby County will pay to the bearer sixty dollars in the city of Memphis on the 1st day of January, 1875, being interest due on bond No. 264, for $1000, of bonds issued to Mississippi River Railroad Company.
The plaintiff contends —
1st. That the commissioners, by whose directions the bonds were issued, and whose president signed them, were lawful officers of Shelby County, and authorized under the acts mentioned in the heading of the bonds, to represent and bind the county by the subscription to the railroad company, and that the bonds issuéd were, therefore, its legal obligations.
2d. That if the commissioners were not officers de jure of the county, they were officers de facto, and, as such, their action in making the subscription and issuing the bonds is equally bìnding upon the county; and
3d. That the action of the commissioners, whatever their want of authority, has been ratified by the county.
The defendant contends —
1st. That the commissioners were not lawful officers of the county, and that there was no such office in Tennessee as that of county commissioner.
2d. That there could not be any such de facto officers, as
3d. That the action of the commissioners was never ratified, and was incapable of ratification by the county.
Upon the first question presented, that which relates to the lawful existence and authority of the county commissioners, we are relieved from the necessity of passing. That has been authoritatively determined by the Supreme Court of Tennessee, and is not open for consideration by us.
From an early period in the history of the State — indeed, from a period anterior to the adoption of her constitution of 1796 — to the passage of the act of March 9, 1867, the administration of the government in local matters in each county was lodged in a county court, or quarterly court as it was sometimes called, composed of justices of the peace, elected in its different districts. The constitution of 1796 recognizes that court as an existing tribunal, and the constitution of 1834 prescribes the duties of the justices of the peace composing it. This county court alone had the power to make a county subscription to the Mississippi River Railroad Company, to issue bonds for the amount, and to levy taxes for its payment, unless the act of March 9, 1867, invested the board of commissioners with that authority. Statutes of 1867, ch. 48, § 6. That act created the board, and provided that it should consist of five persons, residents of the county for not less than two years, each to serve for the period of five years and until his successor should be elected and qualified. The 25th section vested in it all the powers and duties then possessed by the quarterly court of the county, and in addition thereto the authority "to subscribe stock in railroads which the county court of Shelby County has been authorized by general and special law to subscribe, and under the same conditions and restrictions, and to represent such stock in all elections for directors, and provide for payment of subscriptions as made."
The validity of this act superseding the county court was at once assailed as in violation of the constitution of the State. Within a month after its passage William Walker and other
This decision was made in February, 1871. In June following the case mentioned above of the State at the relation of Walker and others against the Commissioners of Shelby County was decided in conformity with it, the Supreme Court holding that at the time the bill was filed the justices were entitled to the relief prayed, and that the decree dismissing the bill was erroneous, and it so adjudged and decreed. But it said that as the act under which the bill alleged that the defendants had usurped office had since then been repealed, and that they had not afterwards assumed to exercise the powers and perform the duties named in the act, it was only necessary, in addition to what was decreed above, to dispose of the costs; and that disposition was made by taxing them against the defendants and awarding execution therefor.
In the same month the Supreme Court decided the case of Butterworth against Shelby County, which also involved a consideration of the validity of the act creating the board of commissioners of that county.
Counsel for the plaintiff have endeavored to show that the adjudication in these cases has been questioned by later decisions, and therefore should have no controlling force in this litigation. A careful examination of those decisions fails to support this position. The opinion that the act was invalid because it was special legislation applicable only to certain counties would seem indeed to be thus modified. But the adjudication that the constitution did not permit the appointment of commissioners to take the place of the justices of the peace for the county, and perform the duties of the county court, stands unimpaired, and as such is binding upon us. Two of the cases, as we have seen, were brought against the commissioners, in one case, of Shelby County, and in the other, of White County, to test the validity of the acts under which they were appointed, or about to be appointed, and their right to assume and exercise the functions and powers of the justices of the peace, and hold the county court in their place. From the nature of the questions presented we cannot review or ignore this determination. Upon the construction of the constitution and laws of a State, this court, as a general rule, follows the decisions of her highest court, unless they conflict with or impair the efficacy of some principle of the Federal Constitution, or of a Federal statute, or a rule of commercial or general law. In these cases no principle of the Federal Constitution, or of any Federal law, is invaded, and no rule of general or commercial law is disregarded. The determination made relates to the existence
On many subjects the decisions of the courts of a State are merely advisory, to be followed or disregarded, according as they contain true or erroneous expositions of the law, as those of a foreign tribunal are treated. But on many subjects they must necessarily be conclusive; such as relate to the existence of her subordinate tribunals; the eligibility and election or appointment of their officers; and the passage of her laws. No Federal court should refuse to accept such decisions as expressing on these subjects the law of the State. If, for instance, the Supreme Court of a State should hold that an act appearing on her statute book was never passed and never became a law, the Federal courts could not disregard the decision and declare that it was a law and enforce it as such. South Ottawa v. Perkins, 94 U.S. 260; Post v. Supervisors, 105 U.S. 667.
But it is contended that if the act creating the board was void, and the commissioners were not officers de jure, they were nevertheless officers de facto, and that the acts of the board as a de facto court are binding upon the county. This contention is met by the fact that there can be no officer, either de jure or de facto, if there be no office to fill. As the act attempting to create the office of commissioner never became a law, the office never came into existence. Some persons pretended that they held the office, but the law never recognized their pretensions, nor did the Supreme Court of the State. Whenever such pretensions were considered in that court, they were declared to be without any legal foundation, and the commissioners were held to be usurpers.
The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined.
In Hildreth v. M'Intire, 1 J.J. Marsh. 206, we have a decision from the Court of Appeals of Kentucky which well illustrates this doctrine. The legislature of that State attempted to abolish the Court of Appeals established by her constitution, and create in its stead a new court. Members of the new court were appointed and undertook to exercise judicial functions. They dismissed an appeal because the record was not filed with the person acting as their clerk. A certificate of the dismissal signed by him was received by the lower court, and entered of record, and execution to carry into effect the original decree was ordered to issue. To reverse this order an appeal was taken to the constitutional Court of Appeals. The question was whether the court below erred in obeying the mandate of the members of the new court, and its solution depended upon another, whether they were judges of the Court of Appeals and the person acting as their clerk was its clerk. The court said: "Although they assumed the functions of judges and clerk, and attempted to act as such,
In some respects the case at bar resembles this one from Kentucky.
Numerous cases are cited in which expressions are used which, read apart from the facts of the cases, seemingly give support to the position of counsel. But, when read in connection with the facts, they will be seen to apply only to the invalidity, irregularity, or unconstitutionality of the mode by which the party was appointed or elected to a legally existing office. None of them sanctions the doctrine that there can be a de facto office under a constitutional government, and that the acts of the incumbent are entitled to consideration as valid acts of a de facto officer. Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is
The case of The State v. Carroll, 38 Conn. 449, decided by the Supreme Court of Connecticut, upon which special reliance is placed by counsel, and which is mentioned with strong commendation as a landmark of the law, in no way militates against the doctrine we have declared, but is in harmony with it. That case was this: The constitution of Connecticut provided that all judges should be elected by its general assembly. An act of the legislature authorized the clerk of a city court, in case of the sickness or absence of its judge, to appoint a justice of the peace to hold the court during his temporary sickness or absence. A justice of the peace having thus been called in and having acted, a question arose whether the judgments rendered by him were valid. The court held that whether the law was constitutional or not, he was an officer de facto, and, as such, his acts were valid. The opinion of Chief Justice Butler is an elaborate and admirable statement of the law, with a review of the English and American cases, on the validity of the acts of de facto officers, however illegal the mode of their appointment. It criticises the language of some cases that the officer must act under color of authority conferred by a person having power, or prima facie power, to appoint or elect in the particular case; and it thus defines an officer de facto:
"First. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be.
"Second. Under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like.
"Third. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.
"Fourth. Under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such."
Of the great number of cases cited by the Chief Justice none recognizes such a thing as a de facto office, or speaks of a person as a de facto officer, except when he is the incumbent of a de jure office. The fourth head refers not to the unconstitutionality of the act creating the office, but to the unconstitutionality of the act by which the officer is appointed to an office legally existing. That such was the meaning of the Chief Justice is apparent from the cases cited by him in support of the last position, to some of which reference will be made. One of them, Taylor v. Skrine, 3 Brevard, 516, arose in South Carolina in 1815. By an act of that State of 1799, the governor was authorized to appoint and commission some fit and proper person to sit as judge in case any of the judges on the circuit should happen to be sick, or become unable to hold the court in his circuit. A presiding judge of the court was thus appointed by the governor. Subsequently the act was declared to
To Carleton v. The People, 10 Mich. 250, we have already referred. By the constitution of Michigan the laws of the legislature took effect ninety days after their passage. The legislature on the 4th of February passed an act creating a new county, and authorized the election of county officers in April following. The officers were elected within the ninety days, that is, before the act took effect, and they subsequently acted as such officers. The validity of their acts was questioned on the ground that there was at the time no law that authorized the election, but the officers were existing by the constitution, and as they subsequently entered upon the duties of those offices, it was held that they were officers de facto.
In Clark v. Commonwealth, from the Supreme Court of Pennsylvania, 29 Penn. St. 129, the question related only to the title of the officer. The constitution of that State provided for a division of the State into judicial districts, and for the election of the presiding judge of the county court for each district by the people thereof. The legislature passed a law transferring a county from one judicial district to another during the term for which the judge of the district had been elected, and whilst presiding judge of the district to which the county was thus transferred he held court, at which a prisoner was convicted
It is evident, from a consideration of these cases, that the learned Chief Justice, in State v. Carroll, had reference, in his fourth subdivision, as we have said, to the unconstitutionality of acts appointing the officer, and not of acts creating the office. Other cases cited by counsel will show a similar view.
In Brown v. O'Connell, 36 Conn. 432, the constitution of the State provided that the judges of the courts should be appointed by the general assembly. An act of the legislature established a police court in the city of Hartford, and provided for the appointment of judges of the court by the common council. It was held that the judge could be appointed only by the general assembly, and to that extent the act was unconstitutional. There was no question as to the validity of the act, so far as it established a police court, and the appointee of the common council was held to be a judge de facto.
The case of Blackburn v. The State, 3 Head, 690, only goes to show that the illegality of an appointment to a judicial office does not affect the validity of the acts of the judge. The constitution of Tennessee requires a judge to be thirty years of age. A judge under that age having been appointed, it was held that he could be removed by a proper proceeding, but until that was done his acts were binding.
In Fowler v. Beebe, 9 Mass. 231, the legislature passed an act erecting the county of Hampden, and provided that the law should take effect from the 1st of August next ensuing. Before that date the governor, with the advice and consent of the then council, commissioned a person as sheriff of the county. There was no such office at the time his commission was issued, but when the law went into effect he acted under his commission. It was only the case of a premature appointment;
None of the cases cited militates against the doctrine that, for the existence of a de facto officer, there must be an office de jure, although there may be loose expressions in some of the opinions, not called for by the facts, seemingly against this view. Where no office legally exists, the pretended officer is merely a usurper, to whose acts no validity can be attached; and such, in our judgment, was the position of the commissioners of Shelby County who undertook to act as the county court, which could be constitutionally held only by justices of the peace. Their right to discharge the duties of justices of the peace was never recognized by the justices, but from the outset was resisted by legal proceedings, which terminated in an adjudication that they were usurpers, clothed with no authority or official function
It remains to consider whether the action of the commissioners in subscribing for stock of the Mississippi River Railroad Company and issuing the bonds, of which those in suit are a part, being originally invalid, was afterwards ratified by the county. The County Court, consisting of the justices of the peace, elected in their respective districts, alone had power to make a subscription and issue bonds. The sixth section of the act of February 25, 1867, to which the bonds on their face refer, provides: "That the County Court of any county through which the line of the Mississippi River Railroad is proposed to run, a majority of the justices in commission at the time concurring, may make a corporate or county subscription to the capital stock of said railroad company, of an amount not exceeding two-thirds the estimated cost of grading the road-bed through the county and preparing the same for the iron rails; the said cost to be verified by the sworn statement of the president or chief engineer of said company. And after such subscription shall have been entered upon the books of the railroad company, either by the chairman of the county court, or by any other member of the court appointed therefor, the court shall proceed, without further reference or delay, to levy an
On the 5th of the following November the legislature passed an act declaring: "That the subscription authorized in said sixth section to be made to the capital stock of the Mississippi River Railroad Company, by the counties along the line of said railroad, may be made at any monthly term of the county courts of said counties, or at any special term of said courts: Provided, that a majority of all the justices in commission in the counties respectively shall be present when any such subscription is made; and provided further, that a majority of those present shall concur therein." Private Acts, 1867-1868, ch. 6, § 1, page 5.
Neither of these acts, as counsel observe, recognizes or in any way refers to the county commissioners, though the last act was passed eight months after the act creating the board of commissioners for Shelby County. Both provide that the subscription may be made by the county court, but upon the condition that a majority of all the justices in commission shall be present and a majority of those present shall concur therein.
The county court met on the 15th of November, 1869, for the first time after the passage of the act of March 9, 1867, and assumed its legitimate functions as the governing agency of the county. On the 11th of April, 1870, it again met and established the rate of taxation for the Mississippi River Railroad bonds at twenty cents on each one hundred dollars' worth of taxable property. At its meeting on the 16th of that month it ordered that the tax for those bonds should be ten cents on each one hundred dollars' worth of property. At the meeting on the 11th there were twenty two justices of the peace present, of whom eighteen voted for the tax levy, and on the 16th only
By this provision of the constitution the county court, as thus seen, was shorn of any power to order a subscription to stock of any railroad company without the previous assent of three-fourths of the voters of the county cast at an election held by its qualified voters, and, of course, it could not afterwards, without such assent, give validity to a subscription previously made by the commissioners. It could not ratify the acts of an unauthorized body. To ratify is to give validity to the act of another, and implies that the person or body ratifying has at the time power to do the act ratified. As we said in Marsh v. Fulton County, 10 Wall. 676, 684, where it was contended, as in this case, that certain bonds of that county, issued without authority, were ratified by various acts of its supervisors: "A ratification is, in its effect upon the act of an agent, equivalent to the possession by him of a previous authority. It operates upon the act ratified in the same manner as though the authority of the agent to do the act existed originally. It follows that a ratification can only be made when the party ratifying possesses the power to perform the act ratified. The supervisors possessed no authority to make the subscription or issue the bonds in the first instance without the previous sanction of the qualified voters of the county. The supervisors in that particular were the mere agents of the county. They could not, therefore, ratify a subscription without a vote of the county, because they could not make a subscription in the first instance without such authorization. It would be absurd to say that
No election was held by the voters of Shelby County with reference to the subscription for stock of the Mississippi River Railroad Company after the new constitution went into effect. No subsequent proceedings, resolutions, or expressions of approval of the county court with reference to the subscription made by the county commissioners, or to the bonds issued by them, could supersede the necessity of such an election. Without this sanction the county court could, in no manner, ratify the unauthorized act, nor could it accomplish that result by acts which would estop it from asserting that no such election was had. The requirement of the law could not, in this indirect way, be evaded.
The case of Aspinwall v. Commissioners of Daviess County, 22 How. 364, is directly in point on this subject. There the charter of the Ohio and Mississippi Railroad Company, created by the legislature of Indiana in 1848, as amended in 1849, authorized the commissioners of a county, through which the road passed, to subscribe for stock and issue bonds, provided a majority of the qualified voters of the county voted on the first of March, 1849, that this should be done. The election was held on that day, and a majority of the voters voted that a subscription should be made. In September, 1852, the board of commissioners, pursuant to the acts and election, subscribed for 600 shares of the stock of the railroad company, amounting to $30,000, and in payment of it issued thirty bonds of $1000 each, signed and sealed by the president of the board and attested by the auditor of the county, and delivered the same to the company. These bonds drew interest at the rate of six per cent. per annum, for which coupons were attached.
It follows that no ratification of the subscription to the Mississippi River Railroad Company, or of the bonds issued for its payment, could be made by the county court subsequently to the new constitution of Tennessee, without the previous assent of three-fourths of the voters of the county, which has never been given.
It is unnecessary to pursue this subject further. We are satisfied that none of the positions taken by the plaintiff can be sustained. The original invalidity of the acts of the commissioners has never been subsequently cured. It may be, as alleged, that the stock of the railroad company, for which they subscribed, is still held by the county. If so, the county may, by proper proceedings, be required to surrender it to the company, or to pay its value; for, independently of all restrictions upon municipal corporations, there is a rule of justice that must control them as it controls individuals. If they obtain the property of others without right, they must return it to the true owners, or pay for its value. But questions of that nature do not arise in this case. Here it is simply a question as to the validity of the bonds in suit, and as that cannot be sustained, the judgment below must be