The defendants in this action are sued directly for their wrongful official act, by which they took the property of the plaintiff, and disposed of it without authority of law; and the question is whether they, (not acting as ministerial officers,) and sued directly as parties to the action, for the tortious act, make a sufficient defense by showing themselves to be acting as officers de facto. The judge at the circuit held that this was not sufficient, and held also, that in such case the defendants must show themselves to be officers de jure. If the judge at the circuit was wrong in so holding, the judgment should be reversed, for every other decision excepted to is merged or swallowed up in this. This question should be first directly decided. It should not be evaded. There is another question which, on the argument, was urged by counsel, and is now treated, here, as if it was this same question, but it is not; and deciding such different question, does not decide this. Some nine cases have been cited to prove that a ministerial officer, de facto, such as a sheriff, bailiff, constable, tax collector or school district collector, acting under process issuing either from a court of general jurisdiction, or from a body of limited jurisdiction, if the subject matter is within that jurisdiction, is protected, if the officers who issued such process are officers de facto. These cases can be multi*58plied. I have found in my researches not less than fifty cases equally strong and conclusive, to the same point with those cited. But as that is not the question to he decided, enough have been cited to prove that undoubted and well settled proposition.
It also seems to he further necessary, in presenting the real question to he decided in this case, to disembarrass it of certain other matters that have been discussed which do not belong to the case, in order that the real question, and that only, may he decided.
1. It is conceded that trustees of school districts have certain judicial duties to perform, and it is, I think, clearly the law that in the performance of such duties they are not responsible for any error of judgment, misjudgment of law, or mistake in fact, while acting within their jurisdiction and the scope of their powers; and that such acts cannot he reviewed collaterally. So far, then, as relates to any errors or mistakes committed within the jurisdiction of such officers, this question need not he further discussed.
2. It is equally well settled that the acts of judicial as well as ministerial officers acting as such officers de facto, by color of title, are as valid, so far as the public or the rights of third persons are concerned, as though they .were officers de jure. And when they are not parties to the proceeding, their title cannot he inquired into collaterally, nor can the title of a ministerial or executive officer he inquired into collaterally, even though he he a party to the action, if the process be fair on its face; and the officer who issued it had jurisdiction of the matter. Nor is this the question to he decided here.
It is a remarkable feature of the cases cited, as well as of the multitude not cited, that each and every one of them have qualified the rule laid down, by the use of the same language of qualification, to wit, that the acts of such de facto officers are valid, “so far as the public or the rights of third persons are concerned.” What is the significance *59and meaning of this universal qualification ? Surely it has not been so long continued as mere ornament or surplusage. It must mean something. Who is there except the public, and third persons, that can be concerned ? In what cases would not the acts of de facto officers be valid ? It is at least fair to assume, that the most learned and distinguished jurists of the country for a period of two hundred years would not have continued this useless qualification if the rule was universal. I will then assume that the rule is not universal, and look for the exception and the reason of it. How let us examine the cases cited, to prove that the ruling at the circuit was error, and see if they establish it. (McCoy v. Curtice (9 Wend. 17) was an action against a school district collector, (a ministerial officer,) for taking the plaintiff’s watch for a school tax. The defendant proved that he acted as collector, proved his warrant signed by two trustees, and proved the organization of the district, &c. by parol. The court permitted the defendant to prove that the trustees were reputed to be such, deciding what we have above conceded to he the law. That is all of that case. In The People v. Cook, (14 Barb. 287,) Mason, J. was discussing the objection that had been raised, that the election in a certain district was void, for the reason that one of the officers who held the election omitted to take the oath prescribed by statute. He held, most properly, that the officer was .one de facto, and that as far as the public and third persons were concerned, his acts were valid. The case of The People v. Yates (4 John. 366) is also cited, but I do not find any principle there laid down having any application to this case. In the case of Potter v. Luther, (3 id, 431,) the defendant was sued in trespass de bonis asportatis; he pleaded that he was deputy sheriff, and that he took the goods by virtue of a fieri facias; and offered to prove by reputation that he was a deputy. He was a ministerial officer. The court correctly decided that such proof was proper. (The People v. Collins, 7 id. 549.) This was a motion for a *60mandamus against the defendant, town clerk, to compel him to record the survey of a road laid out hy the commissioners. The clerk, in his answer, put his refusal on the ground that the commissioners had not sworn into office^ and that one of them, Zacheus Higby, junior, had signed his name without adding the junior. The court ordered the mandamus ; holding that the clerk, a mere ministerial officer, had no right to decide on the acts of such officer de facto, and repeating the doctrine that the acts of officers de facto are valid so far as the public and third persons are concerned. I do not think that this case establishes much, on the point in question, to be decided. In McInstry v. Tanner, (9 John. 135,) on certiorari, one objection to the judgment was, that the justice was a minister of the .gospel, and the proceedings therefore coram nonjudice. The justice denied this, in his return. The justice was not a party to the action, and this was a collateral question. The court held that even if the objection was true, the court could not take notice of such an objection ; he was an officer de facto, and no such issue could be raised, repeating the qualified rule as above. The case of Reed v. Gillet (12 John. 296) was an action of debt on a judgment. The question decided was one of the sufficiency of evidence to sustain a judgment, and has in it no relevant point applicable to this case. The case of Wilcox v. Smith (5 Wend. 231) is also cited. That was a case where the action was also brought against a constable in trespass de bonis asportatis. He justified under an execution issued by a justice of the peace of Orleans county, upon a judgment rendered by him. The execution was regular on its face ; the justice had been acting as such. The court repeated the well established doctrine that the acts of officers de facto are as valid, when they concern the public or the rights of third persons, as though they were officers de jure. The case cited from 6 Binney, 88, has no reference to the question decided in this case. The case of Fowler v. Beebe, (9 Mass. Rep. 221,) if it proves any thing, establishes the very converse of *61the principle for which it seems to be cited. It is a case where the defendant in an action put in a plea in abatement, setting forth that one Day, the deputy sheriff, who served the writ, was appointed such by one Smith, who claimed to be sheriff, and then set forth that Smith had not been legally appointed sheriff, and had no power to make such appointment. The plaintiff demurred, and the question was argued upon this demurrer, to wit, whether the service of the writ was legal. The sheriff was a ministerial officer. Parsons, Oh. J., said: “ Smith (the sheriff) 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 party.” This would be judging 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 “ de jure;” and they held that it was sufficient that he was an officer de facto. But the court added, among other things, “ if the action should be commenced against one claiming to be sheriff, for an act which he does not justify but as sheriff, he would be a party, and the legality of his commission might come in question, and meet a regular decision.” Upon the cases above reviewed, it is argued and held that the circuit judge erred, in holding “that it is not sufficient for the defendants in this action to prove that they were trustees de facto, merely; but that they must prove that they were trustees de jure.”
If this ruling was error, it is not because either of the above Cases hold it to be so. Neither of them, except Fowler v. Beebe, touch that question, and that case, I think, actually sustains the ruling. It holds that when the officer is a party, and is sued for an official act, the legality of his title to the office might be decided. The question then is still open, so far as the above authorities are concerned, (except the last,) to be decided upon principle, and upon authority.
First, then, upon principle. There is no question which *62the courts have watched with greater jealousy, than the power conferred by statute upon individuals, upon corporations or upon bodies of inferior jurisdiction, to divest the citizen of his estate. Whenever this power is permitted to be exercised, the courts have been ever vigilant to confine the exercise of the power to the strictest rule of expressly specified limits; and when such a power has been exercised officially, the officer is bound to show his authority at every step, and his right to exercise the functions of his office. Nor does the law perceive any hardship in requiring the officer, who is bound to know whether he be one or not, to show by what authority he divests another of his estate. This is a safeguard demanded for the protection of private rights. There would be no safety without it.
It has been plausibly and ingeniously urged that this principle creates a great hardship in localities where trustees of school districts are often illiterate, or men of limited education, and the office, at best, an unthankful one, and that strict construction upon their acts makes it one even of peril. This may be true; but if the great safeguard of the citizen— the well established principle of protection to private rights—• is to be made to bend to arguments “ ab inconvenienti ,” we are at sea in dangerous navigation, without our compass.
2. Upon a'most careful and deliberate review of cases, I am satisfied that the judge at the circuit correctly ruled on this point, upon authority. I have been unable to find a case decided in the courts of this state holding the law otherwise. I have found strong, well considered cases, not only in this state, but in several of the adjoining states, in" point, and expressly laying down the same' rule as did the judge at the circuit, and not one to the contrary. The case of Blake v. Sturtevant (12 N. H. Rep. 567) was an action of trespass, de bonis asportatis, against the selectmen, (whose office is substantially, in many respects, like that of school trustees,) for taking the plaintiff's oxen, and causing them to be sold, for the payment of taxes assessed by said selectmen for the *63purpose of building a school house. The defendants pleaded the general issue, and justification under a warrant to the collector, &c. The proof showed the defendants had been elected, hut had not qualified. In deciding the question of liability, Upham, J. said: “ The suit being against the selectmen for an illegal assessment, they must not only show jurisdiction, and a due assessment of the tax on their part, but that they were duly elected and qualified to act; in other words, that they are officers de jure.” “This rule (he continues) is qualified now in those instances where third persons are interested, where it is merely necessary to show an officer de facto.” “ But the rule is correctly laid down .in all the cases where the individual sued is a party; there he must he shown to be an officer de jure.”
The case of Schlenker v. Risley (3 Scam. Ill. R. 483) was an action for false imprisonment. Catón, J. said : “ The general rule of law is, where an officer justifies an act complained of purporting to he done in his official capacity, that it is necessary that he should aver and prove in his defense not only that he was an acting officer, hut that he ivas an officer in truth, and right, duly commissioned to act as such; while as to all others, it is sufficient to aver and prove that he was acting as such officer ; and the reason of the rule is, that the officer himself is hound to know whether he is legally an officer, and if he attempts to execute the duties of an office without authority, he acts at his peril. Whereas it is sufficient, so far as the right of third persons or the public are concerned, that the officer is acting in his official capacity, under color of title.” In Burke v. Elliott, (4 Iredell’s N. C. Rep. 355,)Ruffin, J. laid down the rule of law thus: “ The acts of an officer de facto are good, except, in an action against himself; as to such acts as he undertakes to do as an officer.” The case of Riddle v. The County of Bedford (7 Serg. & R. 386) was an action brought by a county treasurer to recover his fees. Duncan, judge, who delivered the opinion, said : “ There are many acts done by an officer *64de facto that are valid. They are good as to strangers, and as to all those persons who are not hound to look further than the person in the actual exercise of an office; but here the officer is the actual party to the action; the distinction is sound.” The officer had not proved his title to the office de jure, and it was held he could not recover. Luffborough v. Parker, (16 Serg. & Rawle, 351,) in the, same state, was an action of ejectment. The defendants set up title in themselves, derived from a tax sale of the lands, and traced the title hack to an assessment made by the defendant as an assessor, under which the sale took place. The defendant did not show that he had been sworn as an assessor. Gibson, judge, who delivered the opinion, said : “ I am not going to wade through the learning, as to the competency of acts of an officer de facto, but I will take occasion to say here, that I have not the least doubt that as respects third persons, the acts of the assessor would he valid if he in fact had never been sworn.” That however is not this case, and it was held that being a party he must show himself to have been an officer de jure.
In Keyser v. M’Kissam, (2 Rawle, 139,) Rodgers, judge, laid down the law thus : “ The acts of public officers de facto, coming in by color of title, are good so far as respects the public, but void when for their own benefit.”
In Cornish v. Young (1 Ash. 155) the question arose upon certiorari. It was held as follows : “ The judicial acts of an alderman de facto, holding and exercising the office, can only be examined in a proceeding in which he is a party, and can be heard.”
The case of Cumming v. Clark et al. (15 Verm. Rep. 653) was an action of trespass for taking a cow. The defendant justified under a warrant to collect a highway tax. The officer (surveyor) had been appointed to fill the office, for the reason that the incumbent had refused to act. Redfield, judge, said : “ The refusal to act, is not ipso facto vacating an office. There is nobody to exercise a judicial discretion *65on that subject, to declare the office vacant.” “It is said (he continues) that the surveyor was an officer de facto, and therefore his acts are valid. This may be true so far as third persons are concerned, but not when the officer himself, or those under whose authority he is put in motion, are called upon to justify his proceeding. They must show his right to exercise the functions of the office.” In the case of Plymouth v. Painter, (17 Conn. Rep. 589,) Storrs, judge, said: “ The title of an officer defacto cannot be indirectly called in question in a suit to which he is not a party and he adds, at page 593, “although in a suit against a person for acts which he would have authority to do only as an officer, he must, in order to make out a justification, show that he is an officer de jure, because the title to the office being directly drawn in question, in a suit to which he is a party, may be regularly decided, so when he sues for fees, or sets up title to property, by virtue of his office, he must show himself to be an officer de jure” The case of Fowler v. Beebe (9 Mass. Rep. 231) we have already reviewed, showing that it recognizes and holds to the same distinction in the rule between actions directly against the party for his acts, and actions where only the public or third persons are concerned, as is found in all the cases from the other states. But while we have-cited the cases, showing an entire uniformity of legal holding of the courts in the adjoining states, we have a remarkable concurrence in the adjudications of the courts of this state, on this point. (Green v. Burke, 23 Wend. 502, 503. People v. White, 24 id. 539, per Walworth, chancellor, and Id. 565, per Root, senator.) In the well considered case of Savacool v. Boughton, (5 Wend. 180, 181,) Marcy, judge, after the most thorough examination of the cases bearing on this point, says that where the inferior -body either has no jurisdiction of the subject matter, or of the person, neither the court nor the party who procured the proceedings can derive any protection from them, when sued by a party aggrieved; and that a ministerial officer who executes process on the face of *66which it appears that the court had not jurisdiction, would he liable. In the case of The People v. Hopson (1 Denio, 579) there had been an attempt to show that the constable who executed the process had never taken the oath of office, nor given security. Bronson, judge, says: “this would be proper evidence, if the constable, instead of the people, was' the party;” and after citing with approbation the cases in this state above referred to, he concludes : “ When one man attempts to exercise dominion over the person or property of another, it becomes him to see that he has an unquestionable title.” “ And clearly (he says) he cannot recover fees or set up any right of property on the ground that he is an officer de facto, unless he be also an officer de jure.” So in Bentley v. Phelps, (27 Bart. 527,) Smith, judge, recognizes the same distinction. He says : ‘(An officer de facto can do no valid acts except as to third persons. The office, as is said in Riddle v. Bedford County, (7 Serg. & Rawle, 386,) is void as to the officer, but is valid as to strangers. The officer cannot protect himself except possibly in some few cases of ministerial officers. (See also Baker v. Freeman, 9 Wend. 42; Benjamin v. Hull, 17 id. 439, 440, in point?) Nor is this new doctrine : as long ago as the day of Lord Hardwicke, in the English courts, this was acknowledged law. In the case of Smith v. De Bouchin et al., (2 Strange, 994,) the vice chancellor of the University of Oxford had issued a warrant to arrest the plaintiff upon a complaint, without a sufficient affidavit in that regard, to confer jurisdiction ; upon which the plaintiff was arrested and imprisoned. The warrant was fair on its face. The plaintiff sued the vice chancellor, the officer making the arrest, and the jailer, jointly. They put in a joint justification. Lord Hardwicke was of opinion that the action of false imprisonment lay against the vice chancellor. That the other officers being ministerial officers, might have been excused, if they had justified separately, but that by joining with the vice chancellor they forfeited their justification, and judgment was given against the *67whole. This case is cited with approbation in Pekin v Proctor, (2 Wils. 383,) decided in 1768, and the court add these sensible remarks : “ Although it may be thought hard to adjudge a man a trespasser in a case heretofore doubtful, yet the law cannot bend to particular cases ; and it is more for the general utility to suffer particular hard cases than to give usurped authority any effect at all. The hardship of particular cases is thereby most amply compensated to the public.”
If then, upon authority, the court correctly decided that the defendants being directly parties, and being sued as offir cers for an act done as such, were bound to prove themselves officers de jure, then the other rulings in the case are unimportant, as no point is made or claimed that they were proved to be officers de jure; nor was there any offer to prove them such. It was not contended, or insisted, upon the trial, nor was the judge asked to charge, or decide, that they were officers de jure; nor to submit to the jury the question whether the defendants were officers de jure, and it should not now be decided upon a point not raised or discussed upon the trial, nor excepted to. The argument of my learned brothers, to this effect, to prove the defendants were officers de jure, is upon no point raised, or exception taken, in the case. Ho new trial can be had for that reason, if this argument is sound in that particular, even if we could now enter upon that field of speculation. It was not claimed on the trial that these trustees are such de jure. The plaintiff himself, it was shown by the records, had been elected a trustee for a term of three years; he accepted the office, and had entered upon the performance of the duties of his office, and had acted. He had. never resigned; true, he did not act; for what reason does not appear. That neglect or refusal did not vacate the office. (15 Verm. Rep. 653.) If he refused, it subjected him to a penalty, but could work no injury to the district; the other two could notify him and then act without him. There is a penalty for refusing to accept, when *68elected. This refusal also subjects to a penalty; besides, it creates a vacancy. This was the case in Randall v. Smith, (1 Denio, 221.) Refusal to act after acceptance is a different thing. In the.language of Redfield, judge, in Cummings v. Clark, (15 Verm. Rep. 653,) the refusal to act is not ipso facto vacating an office. There is nobody to exercise a judicial discretion to declare the office vacant. The defendants offered to prove they were acting as officers de facto, which was overruled, and excepted to. Afterwards in the course of the trial, they were permitted to prove this, and did prove it. If this was an error at first, it was subsequently cured. But if they had not afterwards been permitted to prove this, I can see no error in refusing to allow them to prove that which, if proved, the court correctly held would not constitute a defense, so it depends upon the legal ruling upon the main question in which this question' is merged, whether this was right or wrong.
It is also argued, though the question does not arise in this case, that the title to an office cannot be determined in a collateral way. The proposition is true, if that is the only thing to be determined; but is not so to the extent claimed, upon the trial of such an issue as this. In all the cases above cited, it was so tried, and they all contradict that position. It is not necessary to discuss that question. Upon the defendants’ theory they had no right to do the act, but by proving their title de facto. If they may prove this kind of title to an office in defense, may not the plaintiffs disprove it ? What is the difference ? In either case, of title de facto, or de jure, it is the trial of title ; and is as easily proved or disproved in case of title de jure as in title de facto—as well in one case as in the other; and has been so admitted, and tried, in a hundred reported cases, and in most of those above cited. Although there are dicta to the contrary, there are no adjudged cases upon that point so conclusively settled otherwise.
*69There is another question in the case, decided by the judge at the circuit, and excepted to, in which I think the ruling was error. It was held that the consent or certificate of the supervisor was a jurisdictional fact, and should have been obtained prior to the district meeting at which the appropriation to build the school house was voted. Such was the construction which had been given to the statute by the state superintendent of schools, and published in the “code of public instruction,” and which holding was adopted by the judge in the haste of the circuit. I think, however, Benjamin v. Hull (17 Wend. 437) decides this the other way, and is authority to be followed. My learned brothers are undoubtedly right in their view of the law on this point. The trustees have no right or power to build upon a new site without the supervisor’s authority; but I am satified such authority need not precede the vote. The question, however, upon this point of the case is entirely immaterial. If the other point was correctly decided, a new trial upon this point would be of no avail. The judgment must and would have been the same if the judge had decided this point the other way. It cannot therefore alter the matter. The case was all out, and if the judge had ruled this question the other way, the same judgment would have been- directed. It was, therefore, and is, immaterial. A new trial upon that point would be useless.
Having come to the conclusion that the defendants did not justify their acts, they must fail. They made no preparation to prove themselves officers de jure, nor offer to prove any thing that was not proved. Both parties adopted the same law, and the same facts, as their full case; one that it was sufficient to show the defendants officers de facto, the other that it was insufficient. Ho other theory was claimed or discussed on the trial. The judge did not pass upon any other. Ho other should now be attempted to be spelled out or inferred. It would not help the defendants to order a new *70trial upon, the ruling as to the supervisor’s certificate. This is a case. If the judge was right on the main question,.as I think he was, the judgment should he affirmed.
[Warren General Term, July 10, 1860.New trial granted.
James, Rosekrans and Potter, Justices.]