
    The State of Ohio, on the relation of Moses B. Newman vs. Thomas K. Jacobs.
    County commisioners de facto, can fill a vacancy in the office of county Treasurer.
    The two commissioners whose places of residence, by the erection of Auglaize county, fell within the limits of that county, and who continuing to discharge their official duties, appointed the defendant a Treasurer, were commissioners de facto, of Allen county, after the passage of the act erecting the county of Auglaize, and at the time when they made the appointment.
    The title to an office will not be tried in a proceeding of Quo Warranto, when at the time of trial the term of office is expired and no judgment of ouster can be pronounced.
    This is an Information in the nature of a Quo Warranto from Allen County.
    The information, which was filed May 29th, 1848, alleges that on the 24th of the same month the defendant did usurp and from thence till the 29th of the same month of May continued, without legal right, to hold and exercise the office of Treasurer of said Allen county, contrary to the laws of the State.
    The .information further alleges, that by the Act of February 14, 1848, erecting the new County of Auglaize, Nicholas Zang-' lein and Samuel Walker, before that time Commisioners of Allen county, lost their residence in^that county, by being included within the limits of Auglaize county — that on the 6th of March, 1848, John Jameson, John P. Fay and Charles H. Ad-gate, Associate Judges of Allen county, convened in special session, at the Court House, in Lima, in said county, and declared the offices of said Zanglein and Walker to be vacant, and appointed Elmer Hartshorn and Josiah B. Roberts to fill said vacancies — that on the same 6th of March, Hartshorn and Roberts took the oath of office — that on the 24th of May, 1848, said Hartshorn and Roberts met at the office of the Auditor of the county, to fill, and did, then and there fill the vacaney occasioned by the death of Alexander Beaty, late Treas-county, by appointing the relator to the office for residue of the term — that on the same 24th day of May, the relator gave bond and took the oath of office, and the bond, with the oath indorsed, was deposited with the Auditor. Yet the defendant, thé information avers, prevents the relator from exercising the duties of his office.
    The defendant filed his plea, June 30,1848, claiming thereby,
    1. That he is not guilty of the usurpation, &c.
    
      2. That on the 28th of February, 1848, the Commissioners of Allen county convened at the Auditor’s office and appointed him Treasurer, the office having become vacant by the death of Alexander Beaty, late Treasurer, whose term of office would not have expired till the first Monday of June, 1848 — that on the 29th of the said month of February he took the oath of office, executed his bond and deposited it, with the oath indorsed, with the Auditor — that on the said 29th of February, he entered upon the discharge of his official duties* and from thence till the filing of the information, he has rightfully continued in the discharge of his duties.
    3. Stating the same vacancy and appointment, but containing a more minute account of the bond, securities, &c.
    The agreed statement of facts is as follows:
    It is agreed by the parties hereto that on the 25th day of February, 1848, Alexander Beaty, who was then treasurer of said county, and whose term of office would have expired on the first Monday of June, 1848, deceased, whereby a vacancy occurred in said office for the said unexpired term — that on the 28th day of said month Jacob B. Haller and Nicholas Zanglein, two of the old commissioners of said county, still acting as such, convened in special session at the office of the auditor of said county, and then and there appointed the said Thomas K. Jacobs treasurer of said county, to fill said vacancy; and that on the 29th day of said month the said Jacobs gave bond to the acceptance of the commissioners of said county as required by law, took the oaths of office, which said oaths were indorsed upon said bond, and said bond so executed and indorsed, was then deposited with said auditor, and the said Jacobs, on said day, entered upon the discharge of the duties of said office, and continued in the discharge thereof until the expiration of said term.
    It is further agreed that said Haller, on the said 28th and 29th days of said month, was a legal commissioner of said county ; and that said Zanglein was also a legal commissioner of said county, unless he was' disqualified by the following state of facts, viz:
    On the second Tuesday of October, 1847, said Zanglein was duly and legally elected commissioner of said comity, for the term of three years; that he was legally qualified as such commissioner ; and .that he entered upon the discharge of the duties of sgid office, and continued in the discharge thereof until after the said 28th and 29th days of said month. On the 14th day of February, 1848, the Legislature of Ohio passed a law erecting the county of Auglaize; which act took effect for the purposes of the organization of said Auglaize county on the 1st day of March, 1848. On the said 14th, 28th and 29th days of said ■ month, said Zanglein resided within the limits of said county of Auglaize, but within the old boundaries of said county of Allen. Immediately after the passage of said act, the said Zanglein elected to remove into the said county of Allen, and discharge the duties of his said office for the said term; of which said election said Zanglein immediately gave notice, and made arrangements to remove as soon as practicable. And- that on the said 28th and 29th days of February, 1848, said Zanglein had rented a house in said county of Allen, to which he then intended to remove in a few days — of all which facts said Zanglein, on the 6th day of March, 1848, gave notice to the Associate Judges of said county of Allen. On the said 6th day of March, the said Associate Judges of said county met at the Clerk’s office in said county, and declared the offices of said Zanglein, and one Samuel Walker, as commissioners of said county of Allen, (who, also, by ‘the said division of said county of Allen, then resided in the said county of Auglaize,) 'vacant, and proceeded to appoint Josiah B. Roberts and Elmer Harts-horn to fill said supposed vacancies. And on the same day, ■said Roberts and.Hartshorn took the oaths prescribed by law to • be administered to county commissioners.
    It is further agreed that the said Haller refused to recognize the said Roberts and Hartshorn as his proper colleagues in the board of commissioners of said county of Allen; but, on the contrary, recognized said Zanglein and Walker as his proper colleagues, who continued to act as such commissioners until they resigned their said offices a short time prior to the October election, 1848, when their places were supplied without controversy. And that said Zanglein was not present at the June session, 1848; that he, after the commencement of the proceedings in the nature of quo warranto against him, abandoned his intention of removing into said Allen county; and that he and said Walker never actually removed their residence into said county.
    It is further agreed that said Roberts and Hartshorn, (except in making the appointment of Moses B. Newman, hereinafter mentioned,) never acted as commissioners of Allen county — but on the contrary thereof, said Haller, Walker and Zanglein acted as such commissioners of said county, and transacted all of the business of said offices until the resignation of the two latter, as before stated. And it is agreed that said Roberts and Hartshorn met on the first Monday of June, 1848, and demanded their seats as commissioners of said county, which were refused to them by said Haller and Walker, who were then acting, and continued to act as aforesaid, as the board of commissioners of said county; and, in compliance with the decision of said Haller and Walker, the auditor of said county declined recording any separate proceeding of said Roberts and Harts-horn ; but continued to record for said board of Haller and Walker.
    And it is further agreed that on the 24th day of May, 1848, the said Roberts and Hartshorn appointed the said Moses B. Newman to fill a supposed vacancy in the office of treasurer of said county, occasioned by the death of said Beaty, as before stated — that said Newman gave bond as required by law, to the acceptance of said Roberts and Hartshorn, and took the 
      statutory oath, which was indorsed on said bond, which said bond, so executed and indorsed, was deposited with the 5 r tor of said county.
    
      B. Stanton, for the Relator.
    Upon the agreed statement of facts three questions arise. 1st. Were Zanglien and Walker Commissioners de facto of Allen county, after the creation of Auglaize county, whose acts are valid, and cannot be inquired into collaterally ? 2d. Is this a collateral proceeding, in which the validity of their acts cannot be inquired into ? 3d. Was the office vacant on the first Monday in June, so that a valid appointment could be made by any authority ? And,
    1st. Were they Commissioners defactol
    
    An officer de facto, is one who has some colorable, though defective title, to the office which he claims.
    An election to an office does not give a man a colorable title to it forever afterwards. Suppose their term had expired, or they had remained beyond the original limits of Allen county, could it still have been claimed that they had a colorable title to their offices? Commissioners must reside in their counties. And ' where they cease to. do so, whether by their own act-or by operation of law, they cease to have any color of title to their office. In Angel & Ames, on Corporations, p. 160, it is said an officer defacto is one who “ has the reputation of being an officer.” An illustration given is where an under stewart receives rent after the death of his principal. But it is said, if the death of the principal was known to the tenants, his acts would not be valid. The doctrine of officers de facto is a sort of fiction invented for the protection of strangers who are ignorant of the defect in the official title.
    The reason of the law does not exist in this case, and therefore the law ought to cease.
    The case of the State v. Ailing, 12 Ohio Rep. 16 ; is not like this case. There the judges were elected and commissioned for the constitutional term of seven years, and it might well be doubted whether any change of the boundaries of the county could deprive them of their office until the expiration of the term for which they were elected.- Here the term of office is fixed by law, and may be changed at the pleasure of the Legislature.
    2d. Is this a collateral proceeding, in which the title of these commissioners cannot be inquired into ? If it were an action of trespass against a supervisor for opening a highway, established by these men claiming to be commissioners, it would look to me much more like a collateral proceeding. But this is a duo Warranto to inquire into the defendant’s title to the office which he claims. It is in the nature of a contested election. And in such a proceeding, what can be more directly in issue than the qualifications of the electors. How can it be said that a man is legally eleoted, or appointed to an office, when it is admitted that those who voted for him were not legally qualified electors. There is no such thing as voters de facto, who are not voters de jure. The election or appointment of an officer, is a very different -thing from a judgment of a Court affecting the rights of parties, who have acknowledged the jurisdiction, by litigating their cause before it! Of course such judgments cannot be impeached collaterally, by impeaching the title of the judge to his office. But where the title to an office is directly put in issue, it seems to me that the rightful authority of the appointing power to' make the appointment, cannot be a collateral matter. And so are the authorities. “ It has been held that an information may be granted to impeach the title to an office, though the objection arise from a defect in the title of the officer’s electors,” AngelAmes on Corporations, 481. The King v. the Corporation of Punyu, 8, Mad. Rep. 216. And a judgment of ouster against the elector is evidence against the officer; King v. Hebden, 2 Strange, 1109. In' the case of the King v. Tile, 2 Strange, 1091, the defendant was elected church warden of the corporation of Christ Church, at a meeting at which one Goldmeyer presided as Mayor. The first question was whether Goldmeyer was Mayor de facto, and it was held that he was not.'
    2d. If he was, whether the presiding of a Mayor was sufficient. And the Court strongly inclined to the opinion that it was not.
    In the case of Harris v. Jays, Croke’s Eliz. 699, the Queen’s Auditor and Surveyor for the County of Nottingham, appointed a Steward of a Manor, pro hoc vice, who held the Court Seet and granted by copy, land which had anciently been copy and had escheated to the Crown for felony, to the defendant and his heirs. It was held, 1. That a copyhold may be granted by the Lord of the Manor, and by the Steward, if he be the Steward. 2. That the appointment of the Steward by the , Auditor and Surveyor is not good. 3. Admitting that he is not Steward de jure, yet he sitting in the Court and granting the copy, and admitting him, and the fine being paid to the Queen, whether it- be good or not. Per Curiam; the grant is void for it is not a thing of necessity.
    The case of The King v. Hebden, 2 Strange, 1109, was an information, in the nature of a Quo Warranto, against the defendant, as Bailiff of Scarborough. He made title under the Bailiffship of Batty & Armstrong. Upon issue joined, whether Batty & Armstrong were bailiffs, a judgment of ouster against them was read in evidence. And upon a motion for a new trial, it was held that the evidence was properly admitted, and a new trial was refused.
    The case of The King v. Mein, 3 Term Rep. 596, was an information against the defendant as Portreeve of the Borough of Fourey, in Cornwall. The defendant claimed under an election by the tenants of the Prince of Wales, upon the Court rolls of the Borough, and Manor. It was replied, that 22 of the persons who had voted for the defendant, had not been duly admitted tenants of the Borough and Manor, upon the Court roll of the Manor. To this it was replied, that, this was a collateral proceeding, in which the right of the tenants to vote could not be inquired into, until it was settled by an information against them. But it was held by the Court, Lord Ken-yon’ Chief Justice, that the question might be tried in this pro- and an information was granted.
    The case of The King v. Grimes, 5 Burrows, 2599, was a Q,uo Warranto against the defendant, as one of the Chief Burgesses of the Borough of Yarmouth. The two principal questions in this case, were: 1. Whether the defendant was legally elected ? 2. Whether John Leigh was Mayor, at the time of the election? On the second question a judgment of ouster, against Leigh, was produced and held competent evidence, though not conclusive, as it might have been procured by collusion. Further evidence was given by the Crown, which was held sufficient, and judgment of ouster was given against the defendant.
    In the case of Johnson v. Wilson Sf Gould, 2 New Hampshire Rep. 202, the plaintiff was elected Town Collector, and accepted the office, but was not sworn in. When the tax list was prepared, it was tendered to him for collection, but he refused to receive it, without an indemnity, which the selectmen refused to give. They treated this as a refusal to serve,, declared the office vacant, and on the next day appointed the defendant Wilson, Collector. He distrained the plaintiff’s property for taxes and sold it, and this action of trespass was brought to recover damages for this distress and sale. And it was held by the Court that the selectmen had no power to appoint the defendant Treasurer— that he could not justify asan officer de facto, and judgment was given for the plaintiff.
    The case of exporte Wilcox et al., 7 Cowen, 402, was a motion to vacate the election of Directors of the Utica Insurance Company. The principal ground of objection was, that the inspectors of the election had not been appointed in the manner required by the charter. In answer to this it was said, that, at all events, they acted under color of authority, and therefore were inspectors do facto, and that was enough. It was said in reply, that the exception in favor of officers de facto only operates in favor of innocent strangers, and can have no application in a proceeding instituted to test the validity of the election, And of this opinion was the Court, and the election was aside on this ground.
    These cases most abundailtly sustain the 'principle quoted from Angel & Ames, and, if that is admitted to be good law, it is conclusive. But if the Court are against me on these points; then
    3. Was the office of Treasurer vacant on the first Monday in June, when the defendant’s last appointment was made, so that a valid appointment could be made ? Roberts and Harts-horn were Commissioners dejure, as well as de facto, from the 6th of March, 1848, until the annual, election. They appointed the relator Treasurer, on the 24th of May, for the term of two years, from the first Monday in June, 1848. He' had been qualified, and given bond according to law. County Commissioners can only appoint a Treasurer to “ fill a vacancy.” But there was no vacancy to fill on the first Monday in June, and therefore the appointment was void, and the relator is entitled to judgment.
    
      Rose &f Bliss, for the defendant, submited the case without argument.
   Avery, J.

Was the appointment of Jacobs, the defendant, to the office of treasurer, valid ?

Two commissioners, under the law, constitute a quorum for the transaction of business; and they have authority, by statute, to fill a vacancy in the office of treasurer. Haller was, without dispute, a commissioner; Zanglein claimed to be a legal commissioner, and on-the 29th of February, 1848, probably was so. But conceding that he was not, then can a commissioner de facto, merely, make a valid appointment of treasurer ? And if he can, was Zanglein such a commissioner? Judges de facto, of the Court of Common Pleas, though they be not judges de jure, can make a valid appointment of a clerk of the Court. State v. Alling, 12 Ohio Rep. 16. That decision was made, we believe, in accordance with the authorities; and ^'ne doctrine will apply to a commissioner of the county, as well a judge of the Court. A denial of it, in either case, would be productive of great mischief in the community, creating derangement in business, and involving innocent men, who have dealt with officers upon the faith of a public appointment, in difficulty and losses. We say, then, that a commissioner de facto can make a valid appointment of treasurer; and if Zanglein, on the 28th day of February, was a commissioner de facto, the defendant, at the institution of these proceedings, legally held the office of treasurer, and could not be ousted.

Was Zanglein a commissioner de facto ?

It will be seen from the statement of facts, that Zanglein and Walker, who were legally the commissioners of Allen county, when the new county of Auglaize was erected, claimed still to be the commissioners of Allen county, and continued to act as such commissioners, until after the appointment of the defendant ; and. that the, two persons named as commissioners by the associate judges, were never recognized by the other commissioner, or the auditor of Allen county, and never acted as commissioners, except in making the appointment of the relator.

They, with Haller, the other commissioner, had the control of the books and papers; and the auditor acting under the law, as clerk of the commissioners, recorded all their proceedings and orders, as the acts of the lawful commissioners. This would seem to be a strong case of an officer de facto. Such an officer is described by Lord Ellenborough in the case of the King v. The Corporation of Bedford Level as “ one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.” In the case before referred to, in 12 Ohio Rep., the Court say that the Court held that Choate and Somers, who appointed the clerk “were not Judges of Huron county,” and those Judges were held to have lost their offices before the expiration of the term for which they were elected, because by a change of the county line their place .of residence, was not within the new limits established, for the county, yet the circumstances connected with their claim to retain the office, made their acts valid, until the decisión against them. And in the case before us, Zanglein, commisioner, would find in the act which it is claimed put an end to his office immediately, good reasons for doubting or denying that such was the effect of the law. The tenth section of the “act to erect the county of Auglaize, (Ohio Laws, Vol. 46 page 130,) direct? “ that the county commissioners of each of the counties effected by the passage of the act, shall here proceed, immediately upon the passage thereof, to attach townships and parts of townships, &c., and to organize said parts of townships, &c., that they may deem expedient.”

By other sections, suits within the limits of Auglaize, if pending before the first of March, shall not be tried in Auglaize, but after the first day of March “suits and other legal process &c., shall be styled of Auglaize county,” and collectors for the counties respectively shall collect taxes till the first Monday of March. The Court have no difficulty in deciding that Zanglein was an officer de facto, and that his acts cannot be impeached collaterally.

The question is raised in the argument on the part of the relator, whether the defendant is entitled to hold for the term commencing on the first day of June, 1848. That case is pot before us under the information, and cannot therefore be decided.

But further, there is an objection to the proceeding in this case, even as to the appointment of February the 28th, because the term of office has at this time expired. In England it seems not to be considered necessary, that the person should continue to hold the office at the time of applying for the information. In New York, however, and Massachusetts, the information has been refused, when the time must expire before the inquiry would have any effect, leaving the- parties to their common remedies. Angel & Ames on Corporations, 436-7.

Such it is understood has been the course of decisions, in this State, and this Court, as far as known, never entertains the suit where the term of office has expired, and no judgment of ouster can be pronounced.

Judgment against the Relator.  