dissenting.
I dissent from the opinion of the majority of the court in this case. Notaries public, known as commercial notaries, are to be appointed by the judges of the superior courts of the several counties of this state, and are to hold their offices for four years, and at the end of that time, if continued, their appointment must be renewed on the minutes of the court. Code, §§1497 to 1503, inclusive. The act of 1868, which is codified in the sections referred to, makes no limit as to the number of these officers, who may be appointed by the judge of the superior court in any county. In my judgment, it is the act of appointment by the judge of the superior court which creates the office and makes the officer; without this act, there is no office and no officer, and when the time expires for which the office was created and the officer appointed, the office ceases and no longer exists, and the officer likewise ceases to exist as an officer. It is as if no such office had ever been created or officer appointed. After the determination of the office by the expiration of the time for which the officer was appointed, the officer cannot exercise any function pertaining to the office, which does not exist; if, however, the person who formerly exercised the functions *421of such office, when it did exist, continues to hold himself out to the world as such officer, and to perform acts that formerly pertained to such office, such acts are mere nullities and are void. There can be no such thing as a de facto officer in respect to an office which does not exist. Hence, I hold that the affidavit before the pretended notary public was a mere nullity. 1 Carter (Ind.), 500; 64 Mo., 58; 5 Wait Act. and Def., 7; 20 Ga., 750; 63 Id., 527; 2 Bishop Crim. Law, 464.
It is admitted that no indictment for perjury could be maintained against the affidavit in this case; the majority of the court concede this. Yet our statute of assignments denounces the penalty for perjury against one who makes a false oath in a case of this kind. Rex vs. Verelst, 3 Camp., 433 ; Rex vs. Roberts, 14 Cox’s Crim. Cases, 101; 3 McCord, 308; 2 Bishop’s Crim. Law, sec 1021, p. 573.
A proposition or conclusion may be announced as common sense, good sense, but whether it be so or not depends upon its truth. If it be common sense or good sense, then it is true, otherwise it is nonsense and error. The human mind often arrives at conclusions by a process of its own, unknown to the thinker, which he announces as common sense or good sense. Whether the conclusion be true or not, depends upon the fact whether the mind had reasoned correctly and drawn a logical conclusion or not. If the proposition announced as common sense or good sense cannot stand the test of good logic, it is error and is not entitled to further consideration.
I think the jugdment should be reversed.