Taylor v. Nichols

The opinion of the court was delivered by Redfield, Ch. J.

Two questions are made in the present case.

I. Is this action one in .which it is competent for the defendants to defend upon the ground that the plaintiff, who made the attachment, was not properly qualified to act as sheriff at the time he made it, he being admitted to have been fully in the exercise of the office de facto.

It is true that the action is in the sheriff’s name, and is one in which he is primarily interested, and one which could not have been brought in the name of the creditor. But nevertheless it is one in which the creditor is generally interested incidentally, and where the whole interest in fact may be in him. The attachment as it regarded the creditor and debtor was valid, and created a valid lien upon the property attached, and which so far as these parties are concerned, could not be defeated in any such manner *108 as here attempted. We think, therefore, that this court ought to regard this suit, prima facie, in the light in which practically the Vast majority of such suits are brought, that is, as one brought in the name of the officer, but for the ultimate benefit of the creditor.

And in this view we think it is not competent to defend the suit upon a ground which is confessedly available only against'the interests of the sheriff, without at least showing that the suit is now prosecuted solely for his benefit.

II. The other question is one of more difficulty. There are a great many dicta of eminent judges, and some decisions going the length of depriving an officer de facto of his official protection upon the ground of some irregularity in his appointment or indue* tion into office. And where the defect is substantial, I should not be inclined to question their entire soundness. And especially should I subscribe to this rule if the omission of the officer were intentional and willful.

But in the present case it is very questionable whether there was any informality even. It is only by a refinement of construe* tion that we are enabled to say that the sheriff did not in fact comply with all the perfected requirements of the law.

The former constitution requited the recognizance of the sheriff to be taken “ before the first judge of the county court in such manner, and in such sum as shall be directed by the legislature.” The act of the legislature, passed under this constitution in 1797, required the recognizance of the sheriff to be taken before the chief judge of the county court, or in case of liis death or absence, before one of the assistant judges.

By the revised statutes of 1839, the recognizance of the sheriff is required to be taken “ before the first judge of the county court,” in the very words of the constitution then in force.

By the alteration of the constitution in 1850, in January, this recognizance is required to be taken before one of the judges of the supreme court, or the two assistant judges of the county court, in such manner and in such sums as shall be directed by the legislature.”

At the October session, 1850, the legislature required the sheriff within ten days after the first day of December, to enter into the recognizance required by the revised statute, naming the section, and in default, enacted that the office should be considered vacant.

*109 Now it is obvservable in the present case, that the plaintiff did comply literally with all the statutes then in force or then enacted. It is only by vacating a portion of those enactments, that we are enabled to arrive at the conclusion that the plaintiff did not do all that the law required, and in the manner required. This process of avoiding a portion of this statute is argued upon the ground that it is in conflict with the existing provisions of the constitution of the state. This, if it could be made out, would certainly be a remarkable ground of depriving a public officer of the protection of his official character, when he had complied with all the requirements of the statute in good faith, and verily believed himself fully invested with all the powers and functions of office, and when no proceedings had been taken to oust him during the term.

But it does not seem very certain that the constitution can fairly be applied to any of the existing enactments of the statute. The alteration of the constitution in 1850 being upon the identical matter, and in all respects a substitute, would doubtless supersede the old constitution upon that subject. But the mere repeal of the provision of the old constitution will not have the effect to repeal the statute. The statute is perfectly valid without any constitutional provision on the subject.

The new provision in the constitution of 1850, is certainly 'perspective in its terms, and 'unless it can be made to apply to the former statute to which it has no natural application whatever, and to which the language of the provision has no natural fitness to apply it, there will certainly be serious difficulty in saying that the sheriff could properly have entered into any recognizance before the two judges of the county court, or a judge of supreme court. This case stands quite different from the case cited from Connecticut Reports, where the provision in the statute was made to apply to the constitution prospectively, in anticipation of its coming in force, and upon the condition that it should be adopted. Here there is no pretense the' statute was intended to meet the constitution, as it was made long before the provision in the constitution was thought of, and in express reference to another constitutional provision. And certainly the constitution seems to contemplate a future enactment of the statute, and one conforming to the constitution, which the existing statute certainly did not.

*110 In this view of the case there either was no provision for the sheriff to give recognizance, or else the former statute remained in force.

And there is nothing in the constitution to hinder the legislature from requiring more security of sheriffs, and different from that specified in the constitution. There is no express or implied prohibition upon the legislature in this respect. The constitution is merely directory in regard to the form of taking security by way of recognizance required by act of the legislature, thereafter passed.

There are no words and no implication excluding other security, or even other forms of recognizance; and unless this be so, we cannot deem even a future act of the legislature, requiring security of sheriffs in other modes, to be unconstitutional.

But if we were disposed to force the application of the existing constitution to a statute passed long before it came into existence, and possibly a court might be justified in doing this to uphold a recognizance taken in that view of the law, we certainly should not even then feel justified in allowing, as a consequence of such construction, those sheriffs who followed the statute without noticing its possible conflict with a subsequent constitutional provision, to be thereby deprived of their official character.

It is not the omission of some doubtful duty which will deprive the officer of the benefit of his official protection. It should be some clear and obvious qualification, and, as I think, a substantial one, the omission of which will thus deprive the officer of his protection.

It is very questionable, I think, whether an officer can be called upon to show that he took the official oath, in order to justify his acts in a suit where he is a party and solely interested, if he can show that he was properly elected or appointed to the office, and exercised its functions. We cannot imagine any possible advantage resulting from the taking of such oath. And as the requirement is mere form, that provision of the constitution would very properly be regarded as merely directory.

But in regard to the official bond the case is different. And it is no hardship to require the officer to comply with the requisitions of the law in good faith, before he is invested with his official *111 protection. But where the officer in all good faith executes his bond, and for any reason it proves inoperative, it would be a remarkable construction, after the official term had expired without ouster, to declare the officer liable for all his official acts, and to deprive him of the entire protection of his official character in all suits between himself and those with whom he has been compelled to deal. We may suppose the bond to want'a seal, or the recognizance not to name the sum by mere accident. It would be little less than absurd to declare the officer a mere intruder on that account.

Judgment affirmed.