This action is brought by the plaintiff as a taxpayer and resident of the town of Elizabethtown in the county of Essex, in this state, asking the court to adjudge that no legal or valid resolution for the removal of the site of any building or change of location of any county offices in the said county of Essex has been adopted or passed by the board of supervisors of said county, and that the action had in said board in the year 1892 in that respect was and is without jurisdiction, illegal, and void; and also asking that the defendant be perpetually enjoined and restrained from providing any official ballots, sample ballots, or instruction cards, or distributing the same, and from incurring any expense, or doing any other act or thing for the purpose of submitting the question of the removal of buildings or changing the location of offices to the electors of the said county of Essex. The plaintiff’s complaint was dismissed at the circuit, and from the judgment entered thereon the plaintiff appeals to this court. The facts, so far as they are necessary to be stated for the purpose of this appeal, are as follows: Chapter 686 of the Laws of 1892, known as the “County Law,” pro
“The board, of supervisors may, except in the county of Kings, by a majority vote of all the members elected thereto, fix or change the site of any county building, and the location of any county office; but the site or location of no county building or office shall be changed when the change shall exceed one mile, and shall be beyond the boundaries of the incorporated village or city, where already situated, except upon a petition of at least twenty-five freeholders of the county, describing the buildings or office the site or location of which is proposed to be changed, and the place at or near which it is proposed to locate such new building or office.”
The law further provides for the publishing of such petition, and notice of its presentation to the board of supervisors. Section 32 provides that:
“On the presentation of such petition and notice, with due proof of their publication, if a majority of all the members elected to such board vote in favor of a resolution for the removal of the site of the buildings described in such petition, to the site also therein described, or the change of the location of its county offices or any of them, said board shall thereupon direct that such resolution together with the notice that the question of such removal will be submitted to the electors of the county at the ensuing general election, be published in at least two newspapers published in the county to be designated by the board, once in each week for six consecutive weeks, immediately preceding such general election. Such resolution and notice shall be published accordingly.”
A petition and notice was presented to the board of supervisors of Essex county. Some questions have been raised in regard to such petition and notice, and the proof of publication thereof, but the view that I have taken of this case renders it unnecessary to discuss them. The board of supervisors of Essex county consists of 18 members; a majority of the members elected would consequently be 10. On the 7th day of December, a resolution, pursuant to the petition presented, providing for a change of the county buildings from Elizabethtown, where they are at present located, to the village of Port Henry, more than one mile from, and beyond the boundaries of, the village where they are now located, came up to be acted upon by said board of supervisors. Of those present and claiming to act as supervisors 10 voted in favor of the passage of such resolution and 8 against the same. The chairman of the board of supervisors decided that a majority of all the supervisors elected to the board did not vote for the resolution, and that it was lost, and stated as his ground for such decision that two of the persons—one named Sullivan, and one named Moyneham— had not been elected supervisors. The decision of the chair was appealed from, and by the votes of the same persons who voted for the passage of the resolution the decision of the chair was overruled, and subsequently, and by the same persons, a resolution was passed, directing the resolution and notice that the question of such removal would be submitted to the electors at the ensuing general election to be published in three newspapers named in such resolution.
It appears by the proceedings in the case that at the town election held in the town of Minerva, Essex county, in March, 1892, Henry Bradley and William H. Sullivan were opposing candidates
“Your committee believe that they are justified, warranted, and upheld in this conclusion by the case of Osborne v. Deane, in the 15th Dutchess, Columbia, and Putnam senatorial district of this state, where the board of county canvassers refused to count the vote cast for Deane until compeEed to do so by order of the highest appellate court of the state, which order was ■obeyed in that case, as it was in the case of the town board of Minerva. Yet the returns made by the irregular board of county canvassers were recognized by the state board of canvassers, and Osborne was allowed to sit as senator from the 15th district, on a minority vote, Deane having received a majority of the votes cast in said district.”
Extended comment upon tins proceeding is unnecessary. The report of the committee was adopted by the board of supervisors, and Sullivan sat with the board of supervisors, and, as we have seen, voted for the passage of the resolution to change the location of the county buildings. The legality of his vote is sought to be upheld upon the ground that he was a de facto supervisor. It seems to me that the act of Sullivan in voting for this resolution Is hardly within the line of action of a de facto officer that out of motives of public policy the law will uphold. The question of who are de facto officers, and under what circumstances the acts of persons unlawfully holding office will, out of motives of public policy, be held valid,- has been the subject of much controversy, and has been frequently passed upon by the courts. I think the leading case upon that subject in this country is perhaps that of State v. Carroll, 38 Conn. 449, where the following broad and comprehensive definition is laid down:
“An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised. First. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to submit to. or invoke his action supposing him to be the officer he assumed to be. Second. Under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like. Third. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise; such ineligibility, want of power, or defect being unknown to the public. Fourth. Under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such.”
Sullivan cannot be said to be acting under either the second, third, or fourth clauses of this definition; neither do I think his act can be said to be one of those mentioned in the first, for neither by reputation nor acquiescence was he acting or holding office under such circumstances “as would calculate to induce people without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be,” for at the time of his voting his right to vote was publicly challenged upon the ground that he was' not a supervisor, so that no one need to be induced without inquiry to submit to his action in that respect. The only people who are called upon at this time to submit to his action are the
The county law, as we have seen, requires that a resolution to change the location of county buildings shall be passed by the majority of members elected, so that neither as an elected or a de facto supervisor was he entitled to vote upon such resolution; consequently it did not receive the votes of the majority of the elected members of the board of supervisors, and it follows therefrom that the question as to the change of county buildings could not legally •be submitted to the electors of the county by authority of such action of the board of supervisors. If I am correct in my conclusions as to the right of Sullivan to sit and vote as one of the board of supervisors, it is unnecessary to pass upon the qualifications of Moyneham as a member of such board.
It is contended, however, that the proceedings of the board of supervisors have been legalized by chapter 148, Laws 1893, reading as follows:
“All proceedings, votes, and resolutions taken and adopted by the board of supervisors of the county of Essex at its annual meeting, held in November and December, eighteen hundred and ninety-two, in relation to changing the site of the county buildings of such county, are hereby legalized, ratified and confirmed, so as to be of the same force and effect as if all the persons sitting as members of such board of supervisors, taking part in such proceedings, and voting upon the questions and resolutions relating thereto., had been duly elected and qualified members of such board, during such meeting.”
That the legislature has power to validate by subsequent legislation acts done under an assumed execution of statute authority which has not been strictly followed is undoubted, provided that the act done, or the manner in which it has been done, is such that the legislature might have authorized it to have originally been done, or done in that way. That which, however, the legislature could not originally authorize to be done, having been done, it cannot legalize by any subsequent act of legislation. Town of Duanesburgh v. Jenkins, 57 N. Y. 177; Williams v. Town of Duanesburgh, 66 N. Y. 129; Tifft v. City of Buffalo, 82 N. Y. 204; Ensign v. Barse, 107 N. Y. 329, 14 N. E. Rep. 400, and 15 N. E. Rep. 401. The question, then, arises as to the power of the legislature to authorize the acts in the beginning. It will be seen by reading the legalizing act that ’it professes to legalize and ratify the proceedings of the board of supervisors, so that they shall have' the same force and effect as if the persons sitting as members of such board and taking part in its proceedings had been duly elected and qualified members of the board. As an adjudication of the right and title of Sullivan to his seat in the board of supervisors the act cannot be held to be of any force or effect, because the legislature is not clothed with any such power, except in the case of its own members. So far as it can be construed as an attempt to qualify any persons not having been legally members of the board of supervisors with the powers of supervisors, it seems to me it must fail. I have not been cited to any authority, nor have
Judgment reversed, and judgment directed adjudging that no valid resolution for the change or location of any county office of the county of Essex was adopted by the board of supervisors of Essex county at its sessions in 1892, and restraining the defendant from printing or distributing any ballots or incurring any expense for the purpose of submitting the question of the removal of the public buildings or changing the county seat of Essex county to the electors of the county of Essex, pursuant to any resolution purporting to have been passed by the board of supervisors of Essex county during the session of 1892, with costs and disbursements. All concur.