The People, ex relat. Bush and Higby, against Collins

New York Supreme Court of Judicature1811-02

7 Johns. 549

Summary · law.co

Holding. The court granted the motion for a peremptory mandamus. The town clerk's return was insufficient because it failed to directly deny that the two Zaccheus Higby references identified the same person, and the town clerk lacked authority as a ministerial officer to invalidate commissioners de facto whose acts concerned public rights.

The People sought a peremptory writ of mandamus against a town clerk who refused to recognize commissioners' actions. The town clerk's return challenged whether Zaccheus Higby and Zaccheus Higby Jr. were the same person and questioned whether the commissioners had properly sworn their oaths of office. The court found these objections insufficient. The designation of 'junior' is merely a descriptive identifier that distinguishes between persons of the same name and is not part of the legal name itself. The defendant was required to directly deny that both names referred to the same individual but failed to do so, rendering the return defective. Regarding the oath requirement, the court explained that commissioners who take office through apparent right—though possibly defective—are commissioners de facto whose official acts remain valid when affecting public interests or third-party rights. The town clerk, as a purely ministerial officer, lacked authority to nullify the commissioners' actions and had a duty to record their documents regardless.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether identical names with generational designations refer to the same person in legal proceedings
Validity of acts performed by commissioners de facto despite defective oath-filing procedures
Scope of authority of a ministerial officer to challenge the validity of elected officials' actions

Procedural posture

Relators Bush and Higby filed for a peremptory writ of mandamus against town clerk Collins, who had returned objections to recognizing the commissioners' authority.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

• Per Curiam.

The counsel in support of the motion for a peremptory mandamus, contends that the return is insufficient;

1. Because, Zaccheus Higby and Zaccheus Higby, junior, are the same person.

2. Because, the relators were commissioners de facto, and their acts, as such, good.

3. Because, the town-clerk is a mere ministerial officer, and has no right to try the validity of the election ®f the commissioners, in this way. :

These objections are well taken. The addition of junior is no part of the name of the commissioner. It is a mere description of the person, and intended only to designate between different persons of the same name. It is a casual and temporary designation. It may exist one day, and cease the next. The question here is, whether the Zaccheus Higby who was elected commissioner, and the Zaccheus Higby who certified the survey, was one and the same person; and the return does not deny that fact, nor aver even an opinion or belief that they were not the same person. The defendant was bound to aver the fact affirmatively and directly, if they were not one and the same person. No issue could be taken upon the return in this respect, and it is essentially bad.

^y^Nor is the allegation material in this case, that the commissioners had not caused a certificate of their oath of office to be filed in the town-clerk’s office. If the " commissioners of highways acted, without taking the oath required by law, they were liable to a penalty; or the town, upon their default in complying with the requisition of the statute, might have proceeded to a new choice of commissioners. But if the-town did not, (and it does not appear that they did in this case,) the subsequent acts of the commissioners, as such, were valid, as far as the rights of third persons and of the public were concerned in them. :i They were commissioners de facto, since they came to their office by colour of titlej^ and it is a well settled principle of law that the acts of such persons are valid when they concern the public, or the rights of third persons who have an interest in the act done; and this rule is adopted to prevent the failure of justice. The limitation to this rule is as to such acts as are arbitrary and voluntary, and do not affect the public utility*/ The doctrine on this subject is to be found at large, in the case of The King v. Lisle. (Andrews., 163.) It certainly did not lie with the defendant, as a mere ministerial officer, to adjudge the act of the commissioners null. It was his duty to record the paper; valeat quantum valere potest. It was enough for him that those persons had been duly elected commissioners within the year, and were in the actual exercise of the office. It may be that .the oath was duly taken; and that the omission to file the certificate of it was owing to casualty or mistake. The validity of the title of the commissioners to their office must not be determined in this collateral way.

The opinion of the court accordingly is, that the rule for a peremptory mandamus be granted.

, Motion granted®