
    Benjamin R. Fowler versus Artemas Bebee and Another.
    The Court will not decide, in an action between other parties, whether a person claiming to be sheriff of a county, and actually executing the duties of the office, be sheriff" of the county de jure.
    
    The original writ in this case was dated August 17, 1812, was served on the same day by Rodney Day, as a deputy sheriff of the county of Hampden, and was returnable to the Common Pleas for that county on the fifth Monday of August last.
    At the return term, after oyer had of the writ and return, the defendants pleaded in abatement, that by the statute of 1811, c. 137, for erecting the county of Hampden, it was among other things provided, that the said law should take effect, and be in force, from and after the 1st day of August, then next ensuing; that long before that day, viz., on the 23d day of May, then last past, a certain instrument, purporting to be a commission appointing Jonathan Smith, Jun., Esquire, sheriff of the county of Hampden, was issued by Elbridge Gerry, Esquire, then governor of the comnonwealth, with the advice and consent of the then counsel thereof, and delivered to the said Smith on the same day, there being no such county as the county of Hampden, nor any such office as sheriff of the county of Hampden, at the time of issuing and delivering the said commission to the said Smith, and for a long time after, in existence within the said commonwealth ; and that the said Smith, under color and pretence of the authority of said instrument, and having no other authority therefor, on the 14th of August aforesaid, by a certain writing under his hand and seal, undertook and assumed to appoint said Rodney Day to be a deputy sheriff of said county. The defendants then aver that Smith had received *no other appointment or commission as sheriff, nor the said Day any other appointment as deputy sheriff, of the said county of Hampden.
    
    To this plea the plaintiff demurs generally, and the defendants join in demurrer.
    
      Lathrop in support of the demurrer.
    When the law has created an office, it is the duty of the governor to nominate a person to perform the duties of such office. By erecting a part of the county of Hampshire into a separate county, the office of sheriff of such county was virtually created, and it became the duty, as it was within the authority, of the executive department of the government to appoint an incumbent for the office. It is true the authorities of the person thus appointed were by the legislature appointed to vest at a future day ; and not until after that day does it appear that Mr. Smith assumed to exercise his office. It appears that his deputation to Hay was made several days after. No act of the legisla turc, making a new county, has any express provision for the appointment of the officers thereof previously to the act’s going into operation ; yet such has been the practice in all cases of the kind. And another construction would involve the most mischievous con sequences. By the constitution, the nomination of all judicial officers, sheriffs, and several others, must be made seven days before their appointment. Time is further necessary for the officers thus appointed to acquire the legal qualifications for the exercise of their offices. But if those officers cannot be nominated and appointed before the separate county exists in fact, it must follow that such county must be, for a considerable time, without any persons vested with authority to keep the peace, or to arrest and restrain criminals of the most malignant character. To avoid this miserable state of things, the executive authority has adopted a construction of the law necessary for the purpose. It will be much to be lamented, if the judicial authority should find another construction necessary.
    
      Bliss for the defendants.
    The act under which Smith derives his assumed authority was not to go into operation * until the 1st of August, 1812. Until that day, then, it had no operative existence. Acts done under pretence of its authority were utterly void.  The ' office was merely possible at the date of this commission, and an appointment to such an office is forbidden by the policy of our constitution. It is true that in England certain ministerial offices may be granted in reversion; but even there an office comprising in it any judicial functions, as the office of sheriff doth, cannot be granted in reversion.  At the date of Smith’s commission, no such office existed, as that to which the executive undertook to appoint him. It was indeed possible that the county of Hampden might come into existence in the ensuing August; that there might then be such an office as that of sheriff’ of such possible county ; and that, at the time contemplated, Smith would be a fit and proper person to fill such possible office. This last, however, in the opinion of many, was pótentia remotissima.
    
    This appointment was also void, as it was a flagrant infringement of the rights and authorities of the succeeding executive officers of the government, who were in a few days to enter upon the duties of their appointment, and would be in the exercise of their offices more than two months before the county of Hampden would commence its existence. If an appointment had been ever so necessary or convenient before the operation of the act, there can be no pretence that such necessity or convenience existed on the 23d of May. But it is a sufficient answer to the argument from the inconvenience of a county being without officers, that the consideration of that subject belonged to the legislature. They might have provided for the case. Not having thought proper to do it, the executive had no authority to substitute itself; nor will it be expected of the judiciary to support and countenance such a usurpation, even if similar ones may have been practised. It is to be observed that until the 1st of August, the*sheriff of the county of Hampshire had jurisdiction over the territory thereafter to constitute the county of Hampden.
    
    
      The Solicitor-General in reply.
    Such an exercise of authority by the executive has never before been called in question; nor is it seen with what provision of the constitution it militates. To say that the appointment was to an office not in existence is but begging the question. Every office necessary to the due organization of the county existed from the passing of the law. It was of the utmost necessity that officers should be prepared to enter on their duties when the act should take effect. This is peculiarly true of the office of sheriff, who is the legitimate protector of the persons and property of the inhabitants. A possible office must mean one which may or may not exist at a future time. This was not such a one, except so far as the legislature might repeal this, as they might every statute of the government. There is little force in the argument attempted to be drawn from the pending .change in the executive. That department of government is as permanent as the government itself, though the persons filling it are annually elected The power, the rights, and the duties, of it exist always, and always the same, in the incumbents for the time being.
    The action was continued nisi for advisement, and at the following November term in Suffolk, the opinion of the Court was delivered by
    
      
      
        Bac. Abr. title Statute, c. — 1 L. Raym. 371.
    
    
      
      9) Com. Dig. Officer, B. 13. —2 Rol. Abr. 154. —11 Co. 4, a.
      
    
   Parsons, C. J.

The question, which, by the plea before us, we are called on to decide in this action, is, whether the service of the original writ by Rodney Ray was legal.

That Jonathan Smith, Jun., is sheriff of the county of Hampden defacto, is very certain; but whether he is sheriff c'e jute, is the question made by the defendants.

Mr. Smith is no party to this record, nor can he be legally heard in the discussion of this plea; although our decision would as effectually decide on his title to the office, * as if he were a This would be a man unheard, contrary to natural equity, and the policy of the law. From considerations like these has arisen the distinction between the holding of .an office de facto and dejure.

We do not decide whether he is sheriff de jure of the county of Hampden, or has intruded himself into the office. • But as we are of opinion that he is sheriff in fact of that county, the plea in abatement must be adjudged bad, and the defendants ordered to answer further.

If an action should be commenced against one claiming to be sheriff, for an act which he does not justify, bul as sheriff; or if an information should be filed, calling on such a one to show cause why he claimed to hold that office; in either case he would be a party ; and the legality of his commission" rnignt come in question, and meet a regular decision,

Respondeos ouster awarded. 
      
      
         [Commonwealth vs Fowler, 10 Mass. Rep. 290.— Bucknam vs. Ruggles, 15 Mass Rep. 180. — The People vs. Collins, 7 Johns. Rep. 549. — M’Instry vs. Tanner, 9 Johns Rep. 135. —Ed.]
     