
    Charles N. Williams, Resp’t, v. Nathaniel C. Boynton, as County Clerk, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 26, 1895.)
    
    1. Injunction—-Public officer—Threat.
    The fact that a public officer has not threatened to do an illegal act, is no bar to the maintenance of an action restraining its commission, where the case is not one of a mere apprehension of some possible act, but of the performance of an official duty already commanded by apparent competent authority, the regularity of which it is not his business to investigate, but which it is his official duty to obey.
    2. Officers—De facto.
    The doctrine as to the validity of acts of officers defacto does not apply, where the official action is challenged at the outset and before any person has been, or can be, misled by it, and where nó rights have, as yet, accrued upon its faith, either of a public or private character.
    3. Same—Color of office.
    In order to constitute a de facto officer, there must either be some appointment or .election which might be supposed to be valid or, possibly, such an occupation of the office without dispute and with general acquiescence as would reasonably lead to the inference that such authority existed, though not at the time known.
    4. Constitutional Law—Local act.
    Chapter 148 of 1893, which undertakes to validate an illegal and wholly unauthorized resolution of the board of supervisors, locating or changing a,county seat, is unconstitutional and void.
    
      Appeal from a judgment of the general term of the supreme court in the third judicial department, entered upon an order, which reversed a judgment in favor of defendant dismissing the complaint upon the merits entered upon a decision of the court on trial at special term.
    This was an action brought by a taxpayer and resident of the county of Essex for the purpose of having certain proceedings of the board of supervisors of that county for the removal of the county seat declared illegal and void, and restraining the defendant from any official acts for the submission of the question-to the electors as illegal official acts and a waste of public funds.
    The board of supervisors of the county of Essex, consisting of eighteen members, in December, 1892, by a vote of ten to eight, passed a resolution changing the site of the county buildings.
    - The chairman of the board, upon the ground that two of the members, one named Sullivan and the other Moynehan, had not been elected supervisors, decided that the resolution was lost; the decision of the chair was overruled by the same vote, and subsequently by the same persons another resolution was passed directing the former resolution, and notice that the question of such removal would be submitted to the electors, to be.published.
    After the town election in the town of Minerva, in March, 1892,. the town canvassing board gave a certificate of election to Sullivan, although his opponent, Bradley, had a majority of the votes cast. A mandamus was issued requiring such board to issue a certificate of election to the candidate having the greatest number of ballots cast for him. The order directing the issue of such mandamus was, upon appeal, affirmed by the general term, and in June, 1892, by the court of appeals.
    Thereafter the town board of canvassers issued a certificate of election to Bradley, who duly qualified, and by an order of the-court Sullivan was directed to deliver the books and papers connected with the office of supervisor to Bradley.
    Thereafter, notwithstanding these facts, a committee on contested seats of the board of supervisors, to which the matter had been referred, reported in favor of the seating of Sullivan, which report was adopted, and he sat with the board and voted for the resolutions in question.
    Thereafter chapter 148 of Laws of 1893 was passed, assuming to legalize the action of the board of supervisors in the premises.
    
      Chester B. McLaughlin] for app’lt; Richard L. Hand, for resp’t.
    
      
      Affirming 54 St. Rep. 748.
    
   Enron, J.

The appellant contests the right of the plaintiff to maintain this action at all, because there is no evidence that the clerk had threatened to submit the question of removing the county seat to the electors. It needed no threat to establish the danger apprehended. The clerk, as a public officer, was required by law to make the submission upon the direction of the board of supervisors. That direction had been given. It was his official duty to obey it, and the presumption is that lie was about to do so, and would do so unless restrained by the order of the-court. The case was not one of a mere apprehension of some possible act, but of the performance of an official duty already commanded by an apparently competent authority, the regularity of which it was not his business to investigate. The act was much more certain to be done than one merely threatened by a person under no obligation at all. We must, therefore, consider the other questions raised by the appeal.

The resolution of the board of supervisors ordering a removal of the county seat, subject to a vote of the electors, depended for its validity upon the vote of Sullivan as supervisor of the town of Minerva, and so as a lawful member of the board. That he was not such supervisor had been adjudged before he took his seat. The court had ordered a re-canvass of the votes east, without rejecting certain paster ballots, and, as a result, Bradley was found to have been elected, and the proper certificate was given to him. nevertheless, the board denied Bradley’s right and seated Sullivan, assigning as authority for the decision the action of the state board pf canvassers in the contest of Osborn against Dean in Dutchess county, which was a contempt of court and punished as such. Thereafter the seating of Sullivan was brought before the supreme court by a writ of certiorari, and the action of the board in that respect reversed and annulled. There is no doubt that Bradley was the duly elected supervisor and Sullivan an intruder and usurper, and. that the action of the board in assuming to seat him was utterly indefensible. He had no right to vote and the resolution was never passed by the required majority. So much is not seriously questioned, but the. appellant insists that while Sullivan was not supervisor de jure he was such de facto, and so his vote is to be sanctioned and the resolution upheld. I do not think that the doctrine invoked has any just application to a case like the present. It applies for the protection of third persons or the public, who have acquired rights upon the'faith of an appearance of authority and wffio will •be harmed by the actual truth. It does not apply where the official action is challenged at the outset and before any person has been or can be misled by it, and where no rights have, as yet, accrued upon its faith, either of a public or private character. Here the act of the officer had but one immediate effect, which was to set in motion another public officer. The resolution of the board did not change the county seat. Eelatively to that result it was inchoate, incomplete, one step toward a purpose not jet accomplished, and before the end was reached and the intended act completed, the court interfered and prevented further progress. Ho private individual had acquired any right upon the faith of the resolution, and before the public had or could acquire any, the validity of the action was challenged, and the very office of the injunction was to stop the incomplete and inchoate act so as to prevent either individuals or the public from being in any manner affected by it. But if the doctrine had any proper application it is still true that Sullivan was not a de jacta officer, because, when he cast his vote, he had no color of title and was a mere usurper and intruder. An existing appearance of right which may mislead, is the essential ground of the doctrine, for otherwise there is no excuse for the party deceived and no basis for a demand of protection. There must either be some appointment or election which might be supposod to be valid, or, possibly, such an occupation of the office without dispute and with general acquiescence as would reasonably lead to the inference that such authority existed although not at the time known. Here, however, all color of title in Sullivan was lost by the adjudication of the court compelling a re-cauvass, and its further explicit order requiring him to surrender the papers of the office. His color of title was wholly destroyed by a public judicial decision, and he became a mere usurper and intruder whose act was challenged at the moment it was done.

The more difficult question, however, is as to the effect of the validating act of the legislature which provided that the proceedings of the board relating to the change of the county seat should have the same force and effect as if all the persons sitting as members had been duly elected and qualified. There was no - effort to make Sullivan a lawful supervisor. That the legislature could not have done. There was no attempt to make his vote a legal vote. That, also, was beyond the legislative power. But the effort was to make the thing done as valid as if Sullivan had been lawfully elected, and as if his - vote had been entirely legal. In other words, the' legislature itself passed the resolution, for that had nothing else to stand upon. The board did not pass it, for a majority of the supervisors rejected it, and it stands, if it stands at all, solely upon the fiat of the legislative will. But the constitution forbids the passing of a local law in cases, among others, of “locating or changing county seats.” Can ten or twenty men, not. supervisors, having no color of authority, and being mere usurpers, call • themselves a county board, pass a resolution to change the county seat, and'then have their act validated by a special and local law covering that case alone ? It seems to me that the validating act would be one in a case of changing a county seat, that it would amount exactly to such a change by legislative enactment, subject to the vote of the people, and, in the case supposed, the legislature would be enabled to defeat wholly the constitutional provision by the indirect method of a defective resolution and then a validating act. It would do indirectly what it could not do directly, and avoid the constitutional provision in form while violating it in fact. Here there was something more than a defect or an irregularity. There was an utter want of authority for the resolution. It never was in fact .passed.' It became one, if at all, by pure force of the legislative will, and in substantial effect it may be said that the supervisors never passed the resolution, but the legislature did. They might have done it by some general law. They could not do it by one which touched the county of Essex alone and a single pretended act of its board of supervisors.

I think the general term were right, and the judgment should be affirmed, with costs.

All concur, except Andrews, Oh. J., who dissents on the question of validation. Judgment affirmed.  