
    WILLIAM BRINKERHOFF, DEFENDANT IN ERROR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY, PLAINTIFFS IN ERROR.
    Argued November 27, 1899
    Decided March 5, 1900
    1. In an action by Brinkerhoff to recover from the city certain installments of salary claimed to be due him as corporation counsel, a verdict was directed in his favor. Upon the evidence contained in the bills of exception—Held, that Brinkerhoff was at least an officer defacto and entitled to the emoluments of that office under the doctrine of Erwin v. Jersey City, 31 Vroom 149.
    2. It was contended that, during the period in question, there was a corporation counsel de jure holding over after the expiration of his term and until his successor should he appointed and qualified, and that there could not be an officer de facto of the same office. Held, that if Brinkerhoff was inducted into and filled the office of corporation counsel during the period in question, he became an officer de facto even though there was an officer de jure having a present right to the office.
    3. It was further contended that there was evidence sufficient to justify the inference that the previous corporation counsel filled the office during the period in question as an officer de jure. Upon this contention it is held—
    
      1. That by the provisions of the “Act concerning the appointment of municipal officers and boards in cities,” passed March 11th, 1893, the board of finance of said city had power to appoint a corporation counsel by the vote of two-thirds of its five members—that is, by the vote of at least four members.
    2. That by the vote of four members in favor of Brinkerhoff's appointment as corporation counsel he became entitled to the office and was corporation counsel de jure, although one of the members so voting for his appointment was only a member de faeto, whose title was attacked by quo warranto.
    
    3. That the principles upon which the acts of defacto officers are held valid require the recognition of appointments to office made by them, when such appointments would be valid, if made by officers de jure.
    
    
      4. The doctrine enunciated by the Supreme Court on this subject in Erwin v. Jersey City, 30 Vroom 282, disapproved.
    On error to the- Supreme Court. This case was tried at the December Term, 1898, of the Hudson Circuit Court, before Mr. Justice Lippincott and a jury, and a verdict, directed for the plaintiff for $1,620.80 and costs.
    For the plaintiff in error, Allan L. McDermott.
    
    For the defendant in error, Charles L. Corbin.
    
   The opinion of the court was delivered by

Magie, Chief Justice.

The judgment brought here by this writ of error was rendered upon a verdict directed by the trial judge.

The action of Brinkerhoff, in whose favor the verdict was directed, was brought to recover the salary or compensation for services as corporation counsel of Jersey City, for January, February and March, 1894. It appeared in evidence that on December 27th, 1893, Brinkerhoff had been appointed to that office by the votes of four of the five members of the board of finance of said city.

The evidence appearing in the bills of exception discloses that Brinkerhoff, after such appointment, was inducted into the office of corporation counsel, and, during the period mentioned, performed such of its duties as were required of him. Under the doctrine laid down by this court in Erwin v. Jersey City, 31 Vroom 141, he thereby became de.faoto the corporation counsel of the city and entitled to the emoluments of the office.

This conclusion would dispose of the case, but for the contention that, under the provisions of the “Act relating to'' officers in cities who now hold or hereafter shall hold their offices for a fixed period,” approved February 28th, 1881 (Gen. Stat., p. 571, § 542), Mr. Edwards, the previous corporation counsel of said city, whose term of office expired in April, 1893, continued to hold the office until his successor' had been appointed and qualified.

It is thereupon insisted that when there is an officer de jure having a present right to the office, there cannot be an officer defacto of the same office. But this proposition is opposed to numerous adjudged cases in which the acts of defacto officers have been held to be valid official acts, although they have been afterwards ousted from office upon the prosecution of de jure incumbents of such offices.

It is thereupon next insisted that there was evidence to go to the jury sufficient to justify the inference that during the' period in question Mr. Edwards, the former corporation ■counsel, continued to fill the office. This contention requires the consideration of the right to office of Mr. Edwards and whether or not Brinkerhoff had acquired not a mere defacto but a de jure title thereto.

This contention was not made either in the Supreme Court or in this court, in Erwin v. Jersey City, supra.

This question thus arises: If the board of finance was empowered to appoint a corporation counsel, and the act of the board in appointing required the concurring votes of four members, what title was conferred by an appointment effected by the necessary vote of one member who was only a member' de facto f

The Supreme Court, in Jersey City v. Erwin, 30 Vroom 282, declared its opinion to be that a de facto appointing board could not create a de jure officer by its appointment.

When that ease was reviewed in this court (Erwin v. Jersey City, 31 Vroom 141), it was deemed unnecessary to express any opinion on that subject, the case being disposed of on other grounds.

But upon the contention now made it is considered necessary to review and decide the question of the power of defactoofficers to create by appointment an officer de jure.

By the, provisions of “An act concerning the appointment of municipal officers and boards in cities,” passed March 11th,. 1893 (Pamph. L., p. 224), it was enacted that the corporation counsel in cities of the first class should be appointed by the board in such cities having charge of the financial affairs' thereof and charged with the duty and power of confirming the annual tax levy, by a vote of not less than two-thirds of all the members of such board.

In the litigation respecting the right of Erwin to the office-' of corporation attorney of Jersey City, the constitutional validity of this act was attacked. Our examination of the act Fas resulted in finding it not open to that objection. Its title is not restrictive nor misleading, nor is the classification of cities on which it operates illusory. Kennedy v. Belmar, 32 Vroom 20; Johnson v. Asbury Park, 29 Id. 604; S. C., 31 Id. 427.

By the provisions of that act the power to appoint a corporation counsel in Jersey City, was vested in the-board of finance, consisting of. five members. The appointment therefore could only be made by the concurring vote of four members. Brinkerhoff’s appointment was made by the votes of .four members, one of which votes was cast by John D. Fraser,who sat in and was recognized by the board as a member.

Fraser’s title to membership in the board was afterwardsquestioned on quo warranto, and he was ousted from his position by the judgment of the Supreme Court. Edelstein v. Fraser, 27 Vroom 3.

But before ouster, Fraser was, upon the evidence before us, a member of the board of finance defacto.

Such an office existed and Fraser was recognized by the-other members of the board as the incumbent of it. There was an office de jure and there could be an incumbent de faeto. Norton v. Shelby County, 118 U. S. 435; Flaucher v. Camden, 27 Vroom 244.

The effect of the acts of officers de faeto are thus stated -by careful text-writers.

Mr. Meehem declares that the lawful acts of an officer de faeto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of the office, as valid and binding as if he were an officer legally elected and qualified for the office and in full possession of it. Mech. Pub. Off., § 328.

Mr. Throop states the rule thus: The general rule is that the exercise of a power by the officer de faeto, which lawfuly pertained to the office of which he had. possession, is valid and binding when it is for the interest of the public or of any individual other than’ the officer himself, to sustain the officers’ act.” Thr. Pub. Off., § 622.

These statements are warranted by numerous cases cited in the text and notes of those authors'.

It is impossible, in my judgment, to limit the power of an ■officer de faeto, which, it is universally conceded, extends to binding his municipal corporation by the issue of bonds-and •the making of other contracts within the scope of the authority of the office he thus acts in, by an exception excluding his power to appoint to office, if he possessed such power as an officer de jure. It is to the interest of the public that offices should be filled, and by incumbents not liable to be •displaced by proceedings against other persons to which they •are not parties. It is to the interest of the person who accepts such an appointment, apparently conferring upon 'him the powers and emoluments of office, that he acquires thereby what was apparently conferred, and what his acceptance of the office indicates he assumed from the apparent authority was properly conferred upon him.

It is not to be denied, however, that there is some conflict •of authority on this subject. It is contended that we are concluded in this court by our adoption and approval of the judgment of the Supreme Court in Dugan v. Farrier, 18 Vroom 383 ; S. C., 19 Id. 613, to the doctrine that a de jure title to office may be conferred by de facto officers. The learned Chief Justice, in dealing with this subject in Jersey City v. Erwin, ubi supra, concluded that the doctrine in question was not involved in or decided by that case. I deem it unnecessary to occupy time in analyzing that case and determining its real ratio decidendi, for if it is not authority for the doctrine now contended for, we are at liberty in this-court- to consider and establish the doctrine if it seems to us most in accord with the principle upon which acts of officersde facto are. held to be valid and binding.

The ground upon which the acts of de facto officers are-held valid in respect to the public and third persons has lately been declared by this court to have been correctly stated in the admirable opinion of Chief Justice Butler in State v. Carroll, 38 Conn. 449, thus: “The de facto doctrine-was introduced into the law as a matter of policy and necessity, to protect the interests of the public and of individuals-when those interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. It was seen, as said in Knowles v. Luce, Moo. 109, that the public could not reasonably be compelled to inquire-into the title of an officer nor be compelled to show a title,’ and these became settled principles of law.” Oliver v. Jersey City, 34 Vroom 634.

The principles thus founded in the law and which have-been applied to sustain obligations, contracts, municipal acts, &c., undertaken or adopted by officers acting as such, though without legal title, are equally applicable to those acts of such officers in making appointments to office. As we have-seen, the public and the appointee both have an interest that such appointments should be unassailable because of the defective title of the officer, who, with apparent authority, has-made the appointment.

As was said by Mr. Justice Storrs in Plymouth v. Painter, 17 Conn. 585, the rights of no person claiming a title or interest under or through proceedings of officers having an apparent authority to act, would be safe, if he were obliged to examine the title of such officer up to its original source, and if the title or interest of such person were held to be invalid by a defect in the appointment, election or qualification of such officer.

Such was the view expressed in the Supreme Court in Dugan v. Farrier, ubi supra, and the opinion formed the basis of the judgment in this court. In Bownes v. Meehan, 16 Vroom 189, the Supreme Court had thus expressed its view upon the same subject: “ The well-settled doctrine that a public officer defdcto, will, while clothed with the ostensible attributes and semblances of office, be, in legal contemplation, received as the officer de jure, would seem necessarily to carry with it the power to fill such offices as could be filled by him if he werQ the lawful incumbent; otherwise the inconsistency and confusion would prevail incident to the circumstance that a part of the official power—that is, the power to appoint to official station—would have to be exercised by the officer de jure while the residue of such power would be in the hands of the officer defaeto. I am not cognizant of any legal principles that will lead to such a state of affairs so inconvenient and impolitic as respect the public.”

In a well-considered case the North Carolina Supreme Court held that one appointed to office by a de facto officer became entitled to the office to which he was appointed de jure and was not a mere officer de facto. People v. Staton, 73 N. C. 546. Similar views were expressed in Ellis v. North Carolina Institution for the Deaf, &c., 68 Id. 423.

The like doctrine is held in Ohio. State v. Alling, 12 Ohio 16; State v. Jacobs, 17 Id. 143; Herron v. Smith, 44 Ohio St. 348.

Upon these principles we think that the act of the board of finance in appointing Brinkerhoff conferred upon him the right to the office of corporation counsel, and he acquired a title de jure which the authorities of the city were bound to recognize.

The result is that the verdict was properly directed in Brinkerhoff’s favor, and the judgment thereon must be affirmed.

For affirmance — The Chief Justice, .Depue, Van Syckel, Dixon, Gummere, Ludlow, Bogert, Nixon, Hendrickson, Adams, Yredenburgh. 11.

For reversal—None.  