* Corpus Juris-Cyc. References: Levees and Flood Control, 36CJ, p. 1023, n. 20 New; Officers, 29Cyc, p. 1389, n. 53 New; Trial, 38Cyc, p. 1566, n. 86. Appellees brought this action in the circuit court of Washington county under section 1, chapter 90, Laws of 1904, to recover of appellant the sum of nine thousand dollars alleged to be due them by appellant in their capacity as cotton tax collectors, as commissions at the rate of two cents a bale on all cotton on which the tax was collected in the levee district for the two-year term beginning July 14, 1924, and ending July 13, 1926. At the close of the evidence, at the request of appellees, the court directed a verdict in their favor in the sum of eight thousand six hundred sixty-four dollars and sixty-eight cents. From that judgment appellant prosecutes this appeal.
There was no conflict in the material evidence in the case. The question was therefore one for the court, and not the jury. The court should have directed a verdict one way or the other.
The following is deemed a sufficient statement of the case to develop the questions involved: Section 1, chapter 90, Laws of 1904, abolished the office of tax collector of the board of Mississippi levee commissioners. By that act the board was authorized to have the cotton tax collected in its district in such manner as it deemed best, at a cost of not exceeding two cents per bale. Since the adoption of that act the board has employed a cotton tax collector every two years, and paid him a commission of two cents per bale on all cotton on which the cotton tax was paid. At the regular July, 1924, meeting *Page 583 of the board, there were two levee boards attempting to function. The board is composed of seven members. One board was organized with S.F. Witherspoon and three other members; the other board was organized with Waddy West and three other members. For convenience, these boards will be referred to as the Witherspoon board and the West board, respectively. The title of the various members of the board to their offices was unquestioned, except as to Witherspoon and West. The former had been commissioned as such, and had been an acting member of the board for some years previous to the July, 1924, meeting. West had recently been appointed by the Governor, and commissioned as a member of the board At the July, 1924, meeting both the Witherspoon board and the West board assumed to function separately as the legal board of levee commissioners. At that meeting the Witherspoon board passed an order electing appellees as cotton tax collectors for the levee district for a two-year term, beginning with the date of that meeting. The West board passed an order electing A.E. Graham tax collector for the levee district for the same term, beginning with the date of that meeting. Each of these boards continued to function and carry on the business of the levee board until the circuit court of Washington county rendered a judgment ousting Witherspoon from membership of the board, and adjudging West, instead of Witherspoon, to be the legal member of the board. That cause was brought up to the supreme court, and the judgment of the lower court affirmed.
At the regular October, 1924, meeting of the board, after Witherspoon had been ousted by the judgment of the circuit court of Washington county, the board passed another order again electing A.E. Graham cotton tax collector for the levee district.
Appellees undertake to sustain the judgment of the trial court upon the authority of section 3473, Code of 1906, section 2811, Hemingway's Code, as well as the common law, which declares valid the acts of a de facto *Page 584 officer while in possession of the office, performing the functions thereof. The statute referred to is in the following language:
"The official acts of any person in possession of a public office, and exercising the functions thereof, shall be valid and binding as official acts, in regard to all persons interested or affected thereby, whether such person be lawfully qualified or not; but such person shall be liable to all the penalties imposed by law for usurping or unlawfully holding office, or for exercising the functions thereof without lawful right, or without being qualified according to law."
In Cooper v. Moore, 44 Miss. 387, the court held that a like statute then in force was merely declaratory of the common law. Appellant's position is that the principle of law that the acts of a de facto officer in possession of an office, performing the functions thereof, are valid, has no application to the facts of this case for the reason that the West board, as well as the Witherspoon board, was actually attempting to function; that one board was just as much in charge of the office and records and papers of the Mississippi levee board commissioners as the other; that therefore this is not a case where a de facto officer is in charge of the office, performing its functions, excluding the de jure officer, but it is a case where both the de jure and the de facto officers were in charge of the office, one just as much as the other, each attempting to perform the duties of the office. And it is true that that was the exact state of facts. The West board was just as much in charge of the affairs of the levee district as was the Witherspoon board. Both were in session at a regular meeting, and at the board's place of meeting. As it turned out, the West board was the legal board, and the Witherspoon board, therefore, in acting separately was acting without authority. This court held in Cohn v. Beal, 61 Miss. 398, that there could not be a defacto and also a de jure officer holding and exercising the functions of an office at the same time. Neither can there be two *Page 585 de facto incumbents of an office at the same time, and where two are acting simultaneously, each under claim of right, the acts of the one who has the legal right to the office will be recognized. 22 R.C.L., p. 589, section 309. The West board was the legal board. One board was just as much in charge of the office as the other. Under those conditions the acts of the dejure board were legal. The court should have granted appellant's request for a directed verdict.
Reversed, and judgment here for appellant.
Reversed.