
    Sarah J. Tower v. Hamilton R. Welker and Alexander T. Montgomery.
    
      Municipal corporations — Oity clerk — Appointment of deputy— Power to administer oaths — Officer de facto.
    
    1. Where a city charter vests in the city clerk all of the powers of a township clerk, and authorizes him generally to administer oaths and take affidavits, he has the power to appoint a deputy, who, in case of the absence, sickness, death, or other disability of the clerk, has the right to perform all of the duties which the clerk could legally perform.
    2. The actual legal right of one in possession of an office cannot be tried in a collateral proceeding between third persons, in which proceeding mere proof of user will be sufficient to show his official action valid.
    Error to Ionia. (Person, J., presiding.)
    Argued October 11, 1892.
    Decided October 27, 1892.
    Replevin. Defendants bring error.
    Affirmed.
    Tbe facts are stated in the opinion.
    
      Clute & Clute, W. O. Webster, and Frank C. Miller, for appellants.
    
      F. D. M. Davis (Thomas F. McGarry and William F. McKnight, of counsel), for plaintiff.
   Durand, J.

This is an action of replevin, brought against the defendants to recover a stock of goods and merchandise, consisting mostly of groceries, provisions, store fixtures, and furniture, then in the Tower block in the city of Ionia.

The facts necessary to be stated are these: One Fred A. Tower, being the owner of the property now in controversy, and being justly indebted to Sarah J. Tower, the plaintiff, in tbe sum of $2,000, for money loaned to bim by her, did on April 7, 1890, execute and deliver to ber a chattel mortgage on tbe same, to secure tbe payment of tbe indebtedness above mentioned. This chattel mortgage is in tbe usual form, and no contention is raised either as to tbe indebtedness or tbe form of tbe mortgage. On April 14, 1890, she filed tbe mortgage in tbe office of tbe city clerk of tbe city of Ionia. On April 15, 1891, no part of said mortgage indebtedness having been paid, she went to tbe office of said city clerk for tbe purpose of making and filing tbe usual renewal affidavit required by law, and found tbe office in charge of one Charles Girard, who was then acting as, and claiming to be, deputy city clerk; tbe city clerk himself then being absent. Upon making ber business known, tbe said Girard, as deputy city clerk, then and there swore ber to tbe affidavit, which' was in tbe usual form prescribed by law in such cases, and, as such officer, annexed tbe same to the mortgage, and filed it in said office. On July 25, 1891, executions, issued upon judgments against tbe mortgagor, Fred A. Tower, amounting to upwards of $1,000, were placed in tbe bands of tbe defendant Montgomery, then a deputy-sheriff of said county, who, by virtue thereof, levied upon tbe property in question, and took possession of it, in denial of plaintiffs right as mortgagee, and upon tbe claim that ber mortgage bad not been properly renewed, and was therefore void as against .the judgment creditors represented in tbe executions. Tbe plaintiff thereupon insisted upon tbe recognition of ber rights as mortgagee, and, upon this being refused, she brought this action against tbe defendants, Welker, as sheriff, and Montgomery, as tbe deputy-sheriff, having tbe property in bis possession. Upon tbe trial in tbe circuit court without a jury tbe judge found for tbe plaintiff, and tbe defendants claim error.

Tbe point of contention raised by defendants is that tbe affidavit of renewal is void, upon the ground that Charles Girard, as deputy city clerk of the city of Ionia, was not an officer having authority to administer an oath. We do not agree with the defendants in this position. Section 18 of the charter of the city of Ionia, as passed in 1873 and amended in 1889, contains the following:

The clerk of said city shall have all powers and duties of township clerks, in addition to the other duties hereby imposed upon him. * * * He is also hereby authorized and empowered generally to administer oaths and to take affidavits.”

Among the powers of a township clerk is that of appointing a deputy, who shall take an oath of office, and file the same with the clerk; and, in case of the absence, sickness, death, or other disability of the clerk, such deputy shall perform the duties of such clerk. How. Stat. § 743. We therefore have no hesitation in saying that under these provisions the city clerk of 'Ionia had a right to appoint a deputy, who, upon the happening of either of the contingencies named, had the right to perform all the duties which the clerk himself could legally perform.

The defendants contend that, even if the clerk has this power to appoint, yet the deputy appointed would only have the right to perform such duties as appertain to township clerks, but without the enlarged rights conferred upon the city clerk to administer oaths and take affidavits.

We think this much too narrow a construction to place upon the legislation. It cannot be that the Legislature intended to create the danger and confusion Avhich such a condition would create; and having, by the authority granted, clearly conferred the right upon the city clerk to appoint a deputy, it is equally clear that it was intended to give the deputy the same power as the principal upon the happening of a contingency which authorized the deputy to act at all. The city clerk, therefore, having “all the powers and duties of township clerks,” had, among such powers and duties, the power and duty of appointing a deputy. Charles Girard was duly appointed a deputy city clerk, filed his oath of office, and at the time the affidavit was sworn to before him was exercising the powers and performing the duties of city clerk.

According to the common law, a deputy was one who exercised an office in another’s right. In general, all ministerial duties which the principal himself has a right to perform may be discharged by a deputy. The following authorities illustrate the general rule that the duties of a deputy are coextensive with the duties of a principal, and that, consequently, the act of the deputy in the present case was an official act, and hence as valid in all respects as though it were the act of the principal: McRaven v. McGuire, 9 Smedes & M. 34; Abrams v. Ervin, 9 Iowa, 87; Com. v. Arnold, 3 Litt. (Ky.) 316; Triplett v. Gill, 7 J. J. Marsh. 438; Hope v. Sawyer, 14 Ill. 254; Eastman v. Curtis, 4 Vt. 616; Beaumont v. Yeatman, 8 Humph. 542; Parker v. Kett, 1 Ld. Raym. 658; Malony v. Mahar, 2 Doug. 432; State v. Ruff, 29 Pac. Pep. (Wash. St.) 999.

The defendants also contend that, although Charles Girard was recognized as a deputy by every one having any business to do at the office of the city clerk, including the public officials of that city, yet there were certain irregularities in the manner of his appointment, or in reference to the time when his official oath was filed, which defeat his legal title to that office. This objection cannot be heard in this proceeding. The record shows that at the time this affidavit was made he was, and for a long time before had been, openly and without objection performing the duties of the office of deputy city clerk. He was de facto that officer, and his title to it cannot be questioned collaterally. The actual legal right of one in possession of an office cannot be tried in a collateral proceeding- between third persons, and in such proceeding the mere proof of user will be sufficient, to show his official action valid. Facey v. Fuller, 13 Mich. 527; Board of Auditors v. Benoit, 20 Id. 176; Druse v. Wheeler, 22 Id. 439; Keator v. People, 32 Id. 484; Jhons v. People, 25 Id. 499; Frey v. Michie, 68 Id. 323; Mead v. County Treasurer, 36 Id. 416; Moiles v. Watson, 60 Id. 415.

We discover no error in the findings of the circuit judge, and the judgment is affirmed, with costs of this-Court.

The other Justices concurred.  