unconstitutional statutes and de facto officers · 2018. 10. 27. · jarrett, 'defacto public...

UNCONSTITUTIONAL STATUTES AND DE FACTOOFFICERS

By CLIFFORD L. PANNAM*Introduction

Thomas Reed Powell once commented that it is just as well that' thelaw is full of collateral doctrines and devices that keep it from behavingas badly as it sometimes talks '.1 Few areas of the law provide a betterexample of his point than does that frequently neglected area of con-stitutional law which is concerned with the legal character of acts per-formed under an unconstitutional statute. The traditional doctrine isthat such a statute is an utter nullity. Perhaps the most famous state-ment of this doctrine is to be found in Norton v. Shelby County 2 whereField J. stated that an unconstitutional statute 'confers no rights; itimposes no duties; it affords no protection; it creates no office; itis in legal contemplation, as inoperative as though it had never beenpassed '.3 Or as a Chief Justice of the High Court of Australia onceput it: 'A pretended law made in excess of power is not and neverhas been a law at all . . . it is invalid ab initio'.4

If such a doctrine were to be mechanistically applied in all of itsrigorous simplicity then the consequences attendant upon a judicialdeclaration that a statute was unconstitutional would be dramaticindeed. Taxes paid under its terms could be recovered. Public officerswould be liable in tort for all invasions of private rights which it pur-ported to justify. Judgments, orders and convictions made or obtainedunder its ostensible authority would be subject to collateral attack.The official acts of any public body it established could be disregarded.

Thankfully the law is ' full of collateral doctrines and devices' whichoperate to produce very different results. Thus the rule which preventsthe recovery of payments made under a mistake of law prevents therecovery of unconstitutional taxes. 5 The doctrine of res judicata oftenprotects judgments based on unconstitutional statutes against collateralattack. 6 Reliance in good faith on the terms of a statute which is later

* LL.B. (Hons.) (Melb.); LL.M. (Illinois); Senior Lecturer in Law in TheUniversity of Melbourne. Presently Thayer Fellow, Harvard Law School. Thisarticle was written in 1965 in partial fulfillment of the requiren1ents for the degree ofDoctor of the Science of Law in the Faculty of Law, Colun1bia University.

t (1935) 48 Harv. L. Rev. 1271, 1273.2 (1886) 118 U.S. 425.3 Ibid., 442.4 South Australia v. The Commonwealth (1942) 65 C.L.R. 373, 408 per Latham C.J.S See generally: Pannam, 'The Recovery of Unconstitutional Taxes in Australia

and the United States' (1964) 47 Texas L. Rev. 777.6 See generally: Annot.,' Validity And Effect Of Judglnent Based Upon Erroneous

View As To Constitutionality Or Validity Of A Statute Or Ordinance Going To Merits'(1945) 167 A.L.R. 517.

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38 Federal Law Review [VOLUME 2

invalidated may protect public officers from liability in tort. 7 Thede facto officer doctrine validates many official acts of bodies which areunconstitutionally created or staffed. These various 'doctrines anddevices' all operate to curb the drastic logical implications of thetraditional view that an unconstitutional statute is a complete nullity.

This paper is concerned with an analysis of one of these doctrines-the de facto officer doctrine. Although the doctrine has roots deepin the common law, it seems to have been almost forgotten by Australianand English lawyers during the past hundred years. With the singleexception of one short article written by Sir Owen Dixon in 19388 thedoctrine is not mentioned in any modern decision, text book, encyclo-paedia, or legal periodical. 9 This situation stands in marked contrastto that which is to be found in the United States where there is a sub-stantial body of case law dealing with all aspects of the de facto officerdoctrine. 10 It is also expounded at length in the legal literature. 11 Acritical analysis of the way in which the American courts have used thedoctrine to limit the retroactive invalidation of official action based onan unconstitutional statute may therefore be of some value.

It is also intended to investigate a second, though related, subject.Together with the other rules referred to above the de facto officerdoctrine fulfils something of a salvage operation in this area of the law.Each one of them protects various forms of official activity from therisk of possible invalidity stemming from a subsequent declaration thatthe statutory authority upon which they are based is unconstitutional.They are necessary to curb the thrust of the traditional view that adeclaration of unconstitutionality operates retroactively. The statute,as it is said, is void ah initio. An alternative approach would be for acourt to specifically provide that its declaration of unconstitutionalityis only to have a prospective operation. This approach would obviatethe need to resort to salvage doctrines which is made necessary by thevoid ab initio theory concerning the effect of an unconstitutional statute.

7 See generally: Pannam,' Tortious Liability for Acts Performed Under an Uncon-stitutional Statute' (1966) 5 Melb. U. L. Rev. 113.

8 , De Facto Officers' (1938) 1 Res Judicatae 285.9 Indeed many of the cases in which the doctrine is discussed do not even appear

in The English and Empire Digest and even those that do appear are impossible tofind by use of the index.

10 For collections of the cases see: Annots.,' De Facto Officers' (1911) 140 Am. St.Rep. 164-205; (1910) 19 Am. Rep. 63; 67 C.J.S. SSe 135-154; 43 Am. Jur. SSe 470-499.

11 The classic text is Constantineau, Public Officers and the De Facto Officer Doctrine(1910). See also: Mechum, A Treatise on the Law ofPublic Office and Officers (1890)SSe 315-346; Throop, Public Officers (1892) ch. 27; McQuillan, Municipal CorporationLaw (1958) 160 et seq.; Wallach, 'De Facto Office' (1891) 22 Pol. Sci. Q. 460;Jarrett, 'De Facto Public Officers' (1936) 9 So. Cal. L. Rev. 189; Harris, 'TheValidity of Acts of Officers Occupying Offices Created Under Laws Declared Uncon-stitutional' (1938) 3 U. Newark L. Rev. 123; Comment, 'The De Facto OfficerDoctrine' (1963) 63 Columbo L. Rev. 909.

JUNE 1966] Unconstitutional Statutes and De Facto Officers 39

The Australian courts have never considered the use of this technique.In the United States on the other hand it has been the subject of muchdiscussion and some significant judicial experimentation. It is intendedto examine the possible use of prospective declarations of uncon-stitutionality in conjunction with the de facto officer doctrine becausein a sense they represent two different methods of dealing with the sameproblem. The one concedes that an unconstitutional statute is a com-plete nullity and operates to stem the consequences that seem to flowfrom the concession. The other challenges the traditional view of anunconstitutional statute and is prepared to admit that prior to adeclaration of unconstitutionality it is capable of giving rise to legalrights and duties.

I. The De Facto Officer Doctrine

An officer de facto is a notional creature only, erected by the law,in order to answer the ends of justice and equity under particularcircumstances.12

Lord Ellenborough once described a de facto officer as ' one who hasthe reputation of being the officer he assumes to be and yet is not agood officer in point of law'.13 This terse description, which is con-stantly referred to in the American cases,14 contains a statement of thecentral ingredient in the de facto officer doctrine and also indicates thenature of the problem it is designed to solve. The problem concernsthe validity of acts performed by a person who appears to be clothedwith official authority but who in point of fact has none. A simple,but harsh, solution to this problem would have been to make the validityof all such acts dependent upon the legality of the person's title to theoffice he purported to fill. Since at least the fifteenth century howeverthe common law has taken a different view.15

12 R. v. Lisle (1738) And. 163, 166; 95 B.R. 345, 346 arguendo. 'The de factoconcept is a product of judicial invention based on considerations of policy and publicconvenience rather than the dictates of strict logic.' Jersey City v. Department ofCivic Service (1959) 57 N.J. Super 13, 24; 153 A 2d. 757, 765.

13 R. v. Bedford Level (1805) 6 East 356, 368; 102 B.R. 1323, 1328. This is ageneralized version of Sir John Holt's description of a de facto steward in Parker v.Kett (1697) 1 Ld. Raym. 658, 660; 91 E.R. 1338, 1340 as one' who has the reputationof being steward, and yet is not a good steward in point of law'.

14 'This definition has been generally approved in this country.' Ridout v. State(1930) 161 Tenn. 248, 256; 30 S.W. 2d. 255, 257. See also: Oliver v. Mayor ofJerseyCity (1899) 63 N.J.L. 634, 638; 44 AtI. 709, 712; State ex reI. Bockmeir v. Ely (1907)16 N.D. 569,573; 113 N.W. 711,713; Annot., 'De Facto Officers' (1911) 140 Am. St.Rep. 164, 165.

15 The first reported case on the de facto officer doctrine appears to be the Abbot ofFountaine's Case (1431) Y.B. 9 H. VI., f. 32. See also Bagot's Case (1470) Y.B. 9Bdw. IV, f. lb, pI. 5. This case is conveniently translated in Hale, Historia Placi-torum Coronae (1736) L, 101 n. (f). The doctrine can also be seen reflected in thestatute 1 Edw. IV c.l. (1461). This statute was passed to 'eschew any Ambiguities,Doubts and Diversities of Opinions' as to the validity of the official acts of theLancastrian kings Henry IV, V and VI. It described them as kings' en fait et nienten droit', or ' in deed and not of right'.


The de facto officer doctrine operates to validate certain acts of thosein apparent, though not lawful, authority. Members of the public areentitled to rely on the 'reputation ' of the officials they deal with andare not required to run the risk that the officials do not have propertitle to their offices. A typical situation arose in Leak v. Howell in 1596.16

There a merchant was prosecuted for landing' 144 pieces of buckram,14 pieces of cloth of gold, 124 pieces of linen cloth, and divers otherparcels' without having agreed to pay customs duty on them. Themerchant alleged that he had entered an agreement to pay the customsduty with one Richard Enys, who had acted as deputy customer at theport of Penryn in Cornwall for three years. It appeared however thatEnys was not lawfully entitled to hold the office of deputy customer.In spite of this the Court of Exchequer found that the agreement wasvalid and directed acquittal of the merchant. The Barons stated thefollowing ground for their decision:

Here Richard Enys was deputy in facto, and exercised the place inthe customhouse; and although he were not de jure, that shall notprejudice the merchants who made their compositions with him;for it would be very mischievous unto them to examine by whatauthority they sit and make their composition.17

The doctrine thus appears to be based, in part at least, on the under-standable reliance that the citizen places on the apparent authority ofpersons who are actually exercising official power. This policy isreflected in the old cases relating to copyhold tenure where some legaldefect was alleged to exist in the title of the steward of the manor.18

It was held that the tenants and third persons were entitled to rely onthe apparent authority of the person who was acting as steward andthat surrenders and admittances made by him were valid.19

16 Cro. Eliz. 533; 78 E.R. 780.17 Ibid. 534, 781. Sir Roger Manwood C.B., Flowerdew, Gent and Ewens BB.

See also Costard v. Winder (1600) Cro. Eliz. 775; 78 E.R. 1005 where Popham C.J.and Fenner J. stress that where a person is in possession of an office '. . . the peoplecannot take notice of any other'. Ibid.

18 The steward usually held a manorial court which regulated and recorded thesetenures. If a copyholder wanted to dispose of his land it had to be surrendered tothe steward who would then admit the new tenant. Similarly this procedure regulatedthe transmission of copyhold land on death. As Littleton points out ' the tenants arecalled tenants by copy of court roll; because they have no other evidence concerningtheir tenements, but only copies of court rolls'. Tenures (1481) f. 62. They werethus 'copyholders'. See generally: Coke, Compleat Copyholder (1630); Fisher,Copyhold Tenure (2nd ed. 1803); Gray, Copyhold Equity and the Common Law (1963).

19 E.g. Knowles v. Luce (1580) Moore (K.B.) 109; 72 E.R. 473; Parker v. Kett (1697)1 Ld. Raym. 658; 91 E.R. 1338; Harris v. Jays (1599) Cro. Eliz. 699; 78 E.R. 934;The Lord Dacre's Case (1584) 1 Leon. 288; 74 E.R. 263. However a purely voluntarygrant of copyhold land by a de facto steward would not bind the lord of the manor.Harris v. Jays Ope cit.; Rous v. Arters (1587) 4 Co. Rep. 24a; 76 E.R. 927; Dillonv. Freine (1589) 1 Co. Rep. 120a; 76 E.R. 270; Coke, Compleat Copyholder (1630)ch. 5 s. 45.


But perhaps the more important policy foundation on which thedoctrine rests is the protection of official action against collateral attackby private individuals on the ground that it lacks a proper legal basis.This appears clearly from the long line of cases in which the officialacts of local government bodies were challenged on the ground thatsome member of the body was improperly elected. The de facto officerdoctrine was applied to validate these acts. Thus improperly electedmayors are held to be capable of binding their corporations by normalcommercial contracts20 and to validly administer the oath of office toburgesses. 21 Similarly, the vote of a de facto Justice of the Peace didnot invalidate the election of a County Treasurer,22 nor did the improperappointment of a group of aldermen affect the validity of their appoint-ment of a bailiff,23 nor that of an under-sheriff invalidate his assignmentof a bail bond.24 Attempts to resist payments of tolls and rates on thegrounds that the persons who levied or fixed them, such as overseers,25toll assessors,26 tithe valuers,27 churchwardens,28 or vestrymen,29 wereillegally elected or appointed all failed on the basis that they were defacto officers. In other cases, the acts of de facto town clerks30 and adeputy registrar of the prerogative office of Canterbury31 were upheld.

The policy behind the application of the de facto doctrine in thesecases is expressed in the following passage from the speech of the LordChancellor, Lord Truro, in the House of Lords in Scadding v. Lorant.32

He was inviting the House to adopt the unanimous opinion of thejudges, reported to them by Pollock L.C.B.,33 that a poor-rate was

20 De Grave v. Mayor and Corporation ofMonmouth (1830) 4 C. & P. 111; 172 E.R.630 (contract to purchase weights and measures for the corporation). Knight v.Corporation of Wells (1695) Lutw. 508; 125 E.R. 267.

21 R. v. Pursehouse (1733) 2 Barn. K.B. 264; 94 E.R. 490. A de facto Bailiff washeld to have the power to swear in burgesses in R. v. Slythe (1827) 6 B. & C. 240; 108E.R. 441.

22 R. v. Justices of Herefordshire (1819) 1 Chitto 700.23 R. V. Malden (1767) 4 Burr. 2135; 98 E.R. 113.24 Kitton V. Fag (1714) 10 Mod. 288; 88 E.R. 732 expressly contradicts this state-

ment but the note to that case by Michael Nolan at the end of the report in 1 Str.6O;93 E.R. 384 reads: 'This case was denied to be law . . . by Lord Mansfield in thecase of Harris V. Ashley [unreported], sittings in Middlesex, Mich. Term 30 Geo.2, B.R.' He notes that the' other Judges of the Court' in Harris V. Ashley' con-curred' with this view.

25 Penney v. Slade (1834) 5 Bing. (N.C.) 319.26 Waterloo Bridge Co. V. Cull (1858) 1 El. & EI. 213; 120 E.R. 888.27 Lancaster and Carlisle Rly. Co. v. Heaton (1858) 8 EI. & BI. 952; 120 E.R. 354.28 R. v. The Inhabitants ofSt. Clements (1840) 12 Ad. & E. 177; 113 E.R. 778. See

also Turner V. Baynes (1795) 2 H. Black. 559; 3 R.R. 506.29 Scadding V. Lorant (1851) 3 H.L.C. 418; 10 E.R. 164.30 R. V. Mayor, Aldermen and Burgesses of the Borough of Calnbridge (1840) 12 Ad.

& E. 702; 113 E.R. 980; Milward V. Thatcher (1787) 2 T.R. 81; 1 R.R. 431.31 Seymour V. Bennet (1742) 2 Atkyn 482; 26 E.R. 691.32 (1851) 3 H.L.C. 418; 10 E.R. 164.33 Sir Frederick Pollock tells the following story of his grandfather Pollock L.C.B.

When he was appointed Attorney-General in 1834 he was knighted and had to pro-vide himself with a coat of arms. He applied to the College of Arms but found the

42 Federal Lal'v Review [VOLUME 2

valid despite the fact that one of the vestrymen who participated instriking it was illegally appointed. He said:

. . . your Lordships will see at once the importance of thatobjection, when you consider how many public officers and personsthere are who are charged with very important duties, and whosetitle to the office on the part of the public cannot be ascertainedat the time. You will at once see to what it would lead if the validityof their acts, when in such office, depended upon the propriety oftheir election. It might tend, if doubts were cast upon them, toconsequences of the most destructive kind. It would createuncertainty with respect to the obedience to public officers, and itmight also lead to persons, instead of resorting to ordinary legalremedies to set right anything done by officers, taking the law intotheir own hands. I think therefore, that the principle laid downby the learned Judges, as the principle of law, is one that is in con-formity with public convenience, with reference to the discharge ofthe duties connected with the office.34

The de facto officer doctrine thus constituted a clear rejection of theview that the validity of official action depended upon the legality ofthe officer's appointment. A person's title to any office could of coursebe challenged directly in Quo Warranto proceedings. Defective titlehowever did not automatically invalidate all official acts that had beenperformed. On the other hand the doctrine did not automaticallyvalidate all of the de facto officer's acts. There were many exceptions.To begin with the doctrine only validated official acts as far as the generalpublic or third persons were concerned. It did not give any protectionwhatsoever to the officer himself. This is a fundamental limitation onthe doctrine.35 The point may be illustrated by reference to Gahan v.Lafite.36

That was an action in which trespass and false imprisonment werealleged against three men who purported to act as judges of the RoyalCourt of the Island of St. Lucia. They had been illegally appointedafter the improper dismissal of the rightful judges. One of the rightful

fees very expensive. After a good deal of negotiation a messenger from the GarterKing-of-Arms called and informed him of the lowest price. Pollock answered:, Tell Garter King-of-Arms, with my compliments, that he may go to the devil sablein flames gules with a pitchfork ardent stuck into his backside proper'. For MyGrandson (1933) 171.

34 (1851) 3 H.L. 418, 447; 10 E.R. 164, 175. Abbot C.J. made the same pointsin two important judgments on this topic. 'If this rule were made absolute [Le.to invalidate the election and swearing in of a burgess by de facto bailiffs] we might becalled upon in the very next term to grant hundreds of the same description, to thedisturbance of almost every corporation in the kingdom.' R. v. Slythe (1827) 6B. & C. 240, 247; 108 E.R. 441, 444. 'The interest of the public at large requiresthat the acts done should be sustained: sufficient effect is given to the statutes [i.e.requiring Justice of the Peace to take an oath] by considering them as penal upon theparty acting.' Margate Pier Co. v. Hannam (1829) 3 B. & Ald. 266, 271; 106 E.R.661, 663.

35 Constantineau, Ope cit. ch. XVII, XXII.36 (1841) 3 Moo. P.C. 382; 13 E.R. 155.


judges was imprisoned by them for two months for contempt becausehe refused to swear them in. At the hearing he protested the legalityof the court but to no avail. The Privy Council upheld an award ofdamages in his favour against the other judges and refused to acceptthe contention that the committal for contempt was valid because theywere de facto judges.37 To apply the doctrine here would give thempersonal protection against the consequences of their own abuse of theoffice. However it is clear that other judgments they might have givenwhere third persons were concerned would have been held to be valid.38

Even where the interests of the public or third persons were concernedthe courts imposed several restrictions on the doctrine. Some of theserestrictions were quite vague but the point is that the courts never usedthe de facto doctrine as an automatic validating technique. To beginwith where the defect in an officer's title violates a strong statutory policythere is authority for the proposition that the doctrine cannot be applied.Take, for example, the provisions of the first Test Act in 1672 underwhich every holder of an office under the Crown was obliged to take theoaths of Supremacy and Allegiance and to receive the ' Sacrament of theLord's Supper according to the usages of the Church of England '.39The officer also had to make a declaration that he did not believe in thedoctrine of transubstantiation. The Act, which was designed to pre-vent' the dangers which may happen from Popish recusants and quietingthe minds of His Majesty's good Subjects', further provided that ifthese things were not done then the person was incapable of holdingany such office. If he persisted in exercising the powers of the officehe was liable to the then enormous fine of £500.

In Hipsley v. Tucke40 the question arose as to whether an officer'sfailure to comply with the provisions of this Act resulted in the invalidityof his subsequent official acts. A mayor had sat as judge and givenjudgment in an inferior court without taking the requisite oaths. Hisjudgment was attacked on a writ of error before the Court of King'sBench. It was argued that he was a de facto judge and that his

37 In In Re Aldridge (1893) 15 N.Z.L.R. 361 Richnlond J. states that the de factodoctrine was not argued in this case. Ibid. 372. This is incorrect.

38 In point of fact two Orders In Council were issued declaring the proceedingsand acts of the court presided over by the three improperly appointed judges to bevalid. Gahan v. Lafite Ope cit. 395; 160. These were probably made ex abundanticautela. An interesting point is that although the Orders cover all proceedings andwere made before the Privy Council appeal the award of damages in this case wasnevertheless upheld. No reasons for this were given in the Advice although thepoint was argued.

39 25 Car. 11, c. 2. It also applied to persons who held offices under the Duke ofYork. See generally: Holdsworth, History of English Law (3rd ed. 1963) vi, 199-203, 223-226.

40 The case is variously reported as Hipsley v. Tucke, Hipsly v. Tuck, Hippesly v.Tucke, and Ipsley v. Turk. It is also reported as having been decided in 1674, 1675and 1676. 3,Keble 606, 665, 682, 121; 84 B.R. 905, 940, 950, 973; 2 Lev. 184; 83E.R. 510; J. Jones 81; 84 B.R. 1157; 2 Mod. 193; 86 B.R. 1019.


judgments could not be collaterally attacked in this way. Sir Matthew'Hale C.J., leading the majority of the Court, with Twisden J. dissenting"accepted this argument. He is reported as having said that

as to the interest of a stranger as acts of jurisdiction they are notvoid, as judgments here in Westminster would not be void by anyone, or all, not having duly taken the oaths; these matters are,collateral and therefore not void.41

This decision was later reversed by a Court composed of Raynsford C.J.,.Twisden, Jones and Wild JJ. with Wild J. dissenting.42 In the onlyterse report of the reasons for this reversal, it appears that it was basedon a special construction of the Test Act in the light of the strength ofits anti-Roman Catholic objectives. The report reads:

But it was answered and resolved by the Court, 1. That by the nottaking of the oaths the office is void by the said Act, and all actsdone by colour of the office. And this was the principal intent ofthe Act, not the penalty, which may be easily avoided by the covinousaction of a friend. And it was observed that the Act of 5 E. 6,against the buying of offices, had a special proviso to make goodthe acts of offiters; but here is no such provision.43

Although Holt C.J.44 and Lee C.J.45 have denied the correctness ofthis reversal of Sir Matthew Hale's decision, and despite the fact thatthe reversal has bee strongly criticized,46 there is much to be said for

proper. What the 'udges seem to have said was that the statutorypolicy embodied in the Test Act pointed so strongly to the completeinvalidity of OffiCi)) action taken in defiance of it that the de factodoctrine could not e applied to validate these acts even if the interestsof third persons ere thereby prejudiced. This does not seem anunreasonable limitation to place on the operation of the doctrine.47

41 3 Keble 606; 84 E.R. 905. He pointed out that 'there must be a conviction[Le. under the Test Act] before this can be made a nullity'. Ibid.

42 3 Keble 721; 84 E.R. 973; 2 Lev. 184; 83 E.R. 510; J. Jones 81; 84 E.R. 1157;2 Mod. 193; 86 E.R. 1019.

43 J. Jones 81; 84 E.R. 1157. Jones the reporter was the Jones J. who sat in the case.44 In the report of Andrews v. Linton (1702) 2 Ld. Raym. 884; 92 E.R. 91 there is the

following passage: '... he', [Holt C.J.] 'denied the case of Hippisley v. Tucketo be the law.' Ibid.

45 During argument in R. v. Lisle (1738) And. 163; 95 E.R. 345 when counselcited this decision as reported in 2 Lev. 184 Lee C.J. said' that the case in fol. 184 isagainst the law and has always been so held '. Ibid. 166; 346.

46 See the remarks of Thomas Leach the editor of the Modern Reports in a noteat the end of the judgment in Hipsely v. Tucke 2 Mod. 193, 194; 86 E.R. 1019, 1020.Hawkins in his Pleas of the Crown (1739) argues that the mayor's acts should havebeen held valid' For otherwise not only those who no way infringe this law, but eventhose whose Benefit is intended to be advanced by it, might be sufferers for another'sFault, to which they are in no way privy. . .' Ibid. Bk. 1, ch. 8, s. 16.

47 See below pp. 61-63. A town clerk was held to be a de facto officer althoughhe had not taken an oath under the Test Act in R. v. Mayor, Aldermen and Burgessesof the Borough of Cambridge (1840) 12 Ad. & E. 702; 113 E.R. 980 and a justice ofthe Peace was similarly treated in Margate Pier Co. v. Hannam (1819) 3 B. & Ald.


There were many other limitations on the doctrine. In the copyholdcases which are referred to above it was clear that a de facto stewardcould not make a voluntary grant of copyhold land although he couldvalidly perform such ministerial duties as taking a surrender and,admitting a new tenant. Such a grant was not ' a thing of necessity'and hence it was void as it might be contrary to the interest of the lordof the manor.48 Similarly in the de facto ecclesiastical officer cases itwas held that ' all judicial acts made by him, as admissions, institutions,certificates, and such like shall be good; but not such voluntary acts astend to the de-pauperation of the successor '.49 Thus a lease of ecclesi-astical land for 101 years by an improperly appointed bishop was heldto be invalid in O'Brian v. Knivan. 50 The same distinction is to be foundin the cases dealing with de facto mayors. In these cases a distinction isdrawn between' such acts as are necessary for the good of the body,which comprehend judicial and ministerial acts, and such as are arbitraryand voluntary'. 51 On this basis a de facto mayor can swear in asuccessor,52 or other persons who have a right to their positions,53 but.cannot appoint a friend as a burgess. 54

It is not intended to explore what is involved in these various exceptions.The point to be made here is that they exist. This is important becausethey demonstrate that the de facto officer doctrine is not inflexible. It isbased on public policy and yields when there are policy reasons why itshould not be applied. Another point that emerges from the Englishcases is that the doctrine tends to be used as a convenient solution forparticular problems without the judges subjecting it to any very preciseanalysis. Indeed in R. v. Lisle in 1738 counsel for the Crown was ableto state that 'an officer de facto is nowhere defined in the books '.55That statement is almost as true to-day as it was then.

The only condition that seems to be necessary for the doctrine tooperate is that a person should have ' the reputation of being the officerhe assumes to be'. 56 This requirement is sometimes stated in slightly

266; 106 E.R. 661. It should be pointed out however that the Test Acts were not asimportant in the mid-nineteenth century as they were at the end of the seventeenthcentury. Indeed Lord Mansfield was able to say in 1777 that they were the productof 'warmer times'. R. v. Monday (1777) 2 Cowp. 530, 540; 98 E.R. 1224, 1229.

48 Harris v. Jays (1599)' Cro. Eliz. 699; 71 E.R. 934, 935. See the cases citedante n. 19.

49 O'Brian v. Knivan (1620) ero. Jac. 552; 79 E.R. 473.50 Ibid.

51 R. v. Lisle (1738) And. 163,173; 95 E.R. 345,349.52 R. v. Castle (1737) And. 119; 95 E.R. 325. 'An officer de facto may do such acts

as are for the preservation of the constitution.' Per Probyn J., 124; 328.53 R. v. Pursehouse (1733) 2 Bam. K.B. 264; 94 B.R. 490.54 R. v. Lisle (1738) And. 163; 95 E.R. 345.55 And. 163, 165; 95 E.R. 345, 346.56 Ante D. 13.


different language. A de facto officer is said to be one who carries outofficial duties under a colourable title to the office. 57 The meaning ofthese concepts has never been clarified by the English courts. The onlyproposition that can be stated with any confidence is that a person whois a manifest usurper and is known not to have any title to the office hepurports to fill cannot be a de facto officer. 58

In the United States the doctrine has received a far more detailedanalysis than is to be found in the English cases referred to above. Thecourts have explored the meaning of ' reputation' or 'colour' whichis the central ingredient of the doctrine. They have considered the typeof official acts it validates and the personal rights and duties of a de factoofficer. There has also been a clear formulation of the policies thedoctrine serves. In State v. Carroll,59 which is the classic60 Americanauthority on the de facto officer doctrine and the starting point of themodern law on the subject, Butler C.l. explained these policies in thefollowing passage:

The de facto doctrine was introduced into the law as a matter ofpolicy and necessity, to protect the interests of the public andindividuals, where those interests were involved in the official actsof persons exercising the duties of an office, without being lawfulofficers. It was seen, . . . that the public could not reasonably becompelled to enquire into the title of an officer, nor he compelledto show a title, and these became settled principles in the law. Butto protect those who dealt with such officers when apparent incum-bents of offices under such apparent circumstances of reputationor colour as would lead men to suppose they were legal officers,the law validated their acts as to the public and third persons, onthe ground that, as to them, although not officers de jure, they wereofficers in fact, whose acts public policy required should be con-sidered valid. It was not because of any quality or character con-ferred upon the officer, or attached to him by reason of any defectiveelection or appointment, but a name or character given to his actsby the law, for the purpose of validating them. When, therefore,in civil cases, the public or third persons had knowledge that theofficer was not an officer de jure, the reason for validating the actsto which they submitted, or which they invoked, failed, and the lawno longer protected them. 61

57 See e.g. Knowles v. Luce (1580) Moore (K.B.) 109; 72 E.R. 473. In this caseManwood C.B. draws a distinction between a steward who has ' colour & nul droit'and ' n'ad colour ne droit ' or one who has colour and no right as opposed to one whohas neither colour nor right.

58 R. v. Bedford Level (1805) 6 East 356; 102 E.R. 1323 (lack of title' notorious ');R. v. Lisle Ope cit. (usurpation of office of mayor immediately contested in Quo Warrantoproceedings).

59 (1871) 38 Conn. 449; 9 Am. Rep. 409.60 The case has been referred to as a 'landmark of the law' by Field J. in Norton

V. Shelby County (1886) 118 U.S. 425, 445.61 (1871) 38 Conn. 449, 467; 9 Am. Rep. 409, 423. See for similar statements:

Butler V. Phillips (1906) 38 Colo. 378; 88 P. 480; Ekern V. McGovern (1913) 154 Wis.157; 142 N.W. 595; Petersilea v. Stone (1876) 119 Mass. 465; 20 Am. Rep. 335.


Butler e.J. went on to give a definition of de facto officers which hasbeen followed in both State and Federal courts ever since. 62 As onejudge has recently put it, 'the definition has had a remarkably con-cordant decisional lineage'. 63 The definition provides that:

An officer de facto is one whose acts, though not those of a lawfulofficer, the law, upon principles of policy and justice, will holdvalid as far as they involve the interests of the public and thirdpersons, where the duties of the office were exercised,

First, without a known appointment or election, but under suchcircumstances of reputation or acquiescence as were calculated toinduce people, without enquiry, to submit to or invoke his action,supporting him to be the officer he assumed to be.

Second, under colour of a known and valid appointment or election,but where the officer had failed to conform to some precedentrequirement or condition, as to take an oath, give a bond, or thelike.

Third, under colour of a known void election or appointment,because the officer was not eligible, or because there was a want ofpower in the electing or appointing body, or by reason of somedefect or irregularity in its exercise, such ineligibility, want of power,or defect being unknown to the public.

Fourth, under colour of an election or appointment by or pursuantto a public unconstitutional law, before the same is adjudged to besuch. 64

Certain aspects of this definition will be considered in the next sectionof this paper. The point to be noted here is that it allows the de factoofficer doctrine a very broad operation. Ever since State v. Carrollthere has been little debate in the American courts as to what is necessaryto constitute a de .facto officer. The development of the doctrine hastaken place in other areas. Questions have arisen as to the paymentof de facto officers. Are they entitled to be paid for their services?Can a de jure officer recover the salary he should have been paid fromthe de facto officer who has acted in his place or from the governmentalauthority which employs him? These questions have generated muchlitigation. 6s In the area of criminal law questions have arisen as to the

62 The compiler of the annotation on De Facto Officers in (1910) 19 Am. Rep. 63was able to say that the definition 'was substantially recognized and adopted bynearly all of the adjudications in the American courts of the present day'. Ibid., 65.See also: Comment, 'The De Facto Officer Doctrine' (1963) 63 Columbo L. Rev.909, 910-914.

63 De Fazio v. Mayor and Council of City of Hobokin (1953) 12 N.J. 515, 520; 79At!. 877, 880.

64 State v. Carroll (1871) 38 Conn. 449, 471-472; 9 Am. Rep. 409, 427.65 Constantineau, op. cit. ch. XIX; Annot., 'Payment Of Salary To De Facto

Officer As Defence To Action By De Jure Officer For Salary' (1954) 64 A.L.R. 2d.1375; Annot., , Right Of De Facto Officer To Salary Or Other Compensation AnnexedTo Office' (1934) 93 A.L.R. 258, supp. (1944) 151 A.L.R. 952; (1950) 67 C.J.S., Officers's. 145; (1942) 43 Am. Jur. 'Public Officers' ss. 487-492.


responsibility for crimes committed by and against de facto officers intheir official capacities. 66 There has also been considerable attentiongiven to the kinds of official action that the doctrine validates. If, forexample, a de facto officer has any personal interest in the validity ofhis acts they are void as against him. The doctrine only validatesofficial acts as far as members of the general public or third persons areconcerned. 67

Such then is the general nature of the de facto officer doctrine. It isnow necessary to consider its application in the situation where thedefect in an officer's title arises from an unconstitutional statutorycreation of his office or authorization of his appointment.

H. Unconstitutional Offices and Officers

Maxims and aphorisms are among the tritest, not to say cheapestweapons, of legal contests. If one may annihilate an opponent'sposition by attacking it with a maxim, or a phrase, the conquest iseasy, for the legal quiver is full of them. 68 '

Given the existence of the de facto officer doctrine several problemsconcerned with its operation in connection with unconstitutional statutesmay now be posed. The first is whether a person who is appointed to alegally existing office by, or pursuant to, the terms of an unconstitutionalstatute can be regarded as a de facto officer. The second raises the sameenquiry in regard to a person who is appointed to an office whichis established by an unconstitutional statute. These problems arepeculiar to a constitutional system which delimits, defines and controlsthe exercise of governmental powers. They could not arise in England,for example, because there the concept of an unconstitutional statute isunknown.

The first problem may be illustrated by reference to the facts of Statev. Carroll which has already been referred to. That was an appeal froma conviction for criminal libel and breach of the peace which ,had beenobtained before an acting judge of the City Court of New Haven, Con-necticut. The basis of the appeal was that the statute which purportedto authorize a clerk of the court to request a justice of the peace to actas judge of the court in the event of the normal judge's illness was uncon-stitutional. There was a legally constituted office but it was alleged thatthe appointment of the acting judge was unconstitutional. The question

66 Constantineau, Ope cit. ch. XVIII & XXI; Annot., 'De Facto Status Of OfficerAs Affecting His Criminal Responsibility' (1929) 64 A.L.R. 534; 43 Am. Jur. Ope cit.s. 498; 67 C.J.S. Ope cit. S. 147.

67 Constantineau, Ope cit. ch. XVII & XXII; 43 Am. Jur. Ope cit. ss.493-496; 67C.J.S. Ope cit. s. 146.

68 State v. Gardner (1896) 54 Ohio St. 24, 53; 43 N.E. 919, 1012 per Spear I. con-curring.


before the Connecticut Supreme Court was whether, assuming the statutewas unconstitutional, the de facto officer doctrine validated the pro-ceedings in the trial court. Could a person derive sufficient ' colour' or, reputation ' to constitute him a de facto officer from an unconstitutionalappointment ?

There was some authority in the earlier American decisions for theview that an unconstitutional statute could not be used to found a claimto de facto status. This view was based on a supposed requirementthat in order to constitute a de facto officer there must be colour ofappointment or election by a body which has legal power to appoint.An unconstitutional statute could confer no such power and thereforeit could give no colour to the appointment. 69 Butler e.J. rejected thesupposed limitation on the basis that it ignored the true character of thedoctrine. It was not concerned with the nature of the defect in anofficer's title but rather with whether third persons were entitled to relyon its validity. On this basis even a usurper or a mere intruder couldbecome a de facto officer if there was evidence to show that there hadbeen such acquiescence in his exercise of official power as would leadmembers of the public to assume that he was legally appointed. Thiswas included as the first limb of his definition of a de facto officer whichhas already been set out. 70 Later cases have confirmed this view. 71Reputation is enough.

It was then argued in State v. Carroll that nevertheless a ' manifestly'unconstitutional statute could never give the necessary reputation orcolour because members of the public would not be acting reasonablyif they relied on the validity of its provisions. Butler e.J. rejected thisargument on the basis that it was not possible, or proper, to draw dis-tinctions beween statutes which are 'manifestly' unconstitutional andthose which are of merely doubtful constitutionality. Any statute whichwas later declared to be unconstitutional could operate to give colourto a de facto officer because members of the public are entitled to relyupon its ostensible validity. He thought it 'absurd' to say that suchstatutes were incapable of conferring sufficient colour to constitutede facto officer status.

69 The origin of this requirement was a passage from the report in Strange of thedecision in R. v. Lisle (1738) 2 Str. 1090; 93 E.R. 1051 which has the court saying that, in order to constitute a man an officer de facto, there must be at least the form of anelection '. This report has been described as 'brief, inaccurate and deceptive'.State v. Carroll 9 Am. Rep. 409,420. The report in And. 163; 95 E.R. 345 is muchbetter. It is there made clear that it was no defence to Lisle in Quo Warranto pro-ceedings to claim he had been appointed by a de facto mayor because he knew thatthe mayor had never been elected and had no valid title to the office. In this contextit is sensible to say that the mayor needed the colour of an election to give him defacto status.

70 Ante p. 47.71 Petersilea v. Stone (1876) 119 Mass. 465; 20 Am. Rep. 335; Van Amringe v.

Taylor (1891) 108 N.C. 196; 12 S.E. 1005; Constantineau, Ope cit. ch. 9.

FLR-4


Although in several earlier cases the same decision had been reached72it was State v. Carroll that became the leading case on the point. 73 Theconclusion has never been subsequently questioned and it is now settledlaw in the United States that a person who is appointed to a legallyexisting office pursuant to an unconstitutional statutory authorizationis a de facto officer. 74

With regard to the second problem posed above there is no suchunanimity in the authorities. Some courts hold that there cannot be ade facto officer unless there is a legally constituted, or de jure, officewhich he purports to fill. On the other hand there is just as muchauthority for the proposition that there can be a de facto officer of a defacto office. The trouble began with Norton v. Shelby County. 75

That was an action brought upon certain bonds which had been issuedon behalf of Shelby County in Tennessee by a Board of County Com-missioners. Prior to 1867, when the statute was passed which createdthe Board of Commissioners, responsibility for the administration ofcounty affairs in Tennessee was vested in a County Court which wascomposed of elected justices of the peace. The County Court alonehad authority to issue bonds in the name of the County. The 1867statute purported to abolish the County Courts and to transfer all oftheir powers to Boards of County Commissioners. Within a month ofits passage the constitutionality of the statute was attacked by themembers of the County Court of Shelby County. Before the con-clusion of this litigation the Board of County Commissioners for ShelbyCounty issued the bonds which were the subject of the present action.Shortly thereafter the Supreme Court of Tennessee held that the Actof 1867 was unconstitutional. When suit was brought on the bondsin a federal court the County defended on the basis that it was not boundby the acts of the members of the unconstitutional Board. The defencesucceeded.

The main argument addressed to the Supreme Court of the UnitedStates on appeal was that the members of the Board were de facto

72 Taylor v. Skrine (1815) 3 Brevard (N. Carol.) 516 (judge); Coke v. Halsey (1842)41 U.S. 71, (clerk of probate court); People v. White (1871) 24 Wend. 520 (judges);Carleton v. People (1862) 10 Mich. 250 (county officers); Commonwealth v. McCombs(1867) 56 Penn. 436 (legislative officer); Brown v. O'Connell (1870) 36 Conn. 432,4 Am. Rep. 89 (judge of police court); Ex Parte Strang (1870) 21 Ohio St. 610 (judgeof police court).

73 Ante p. 46.74 E.g. Smith v. Larsden (1963) 214 Tenn. 34; 370 S.W. 2d. 557 (Members of Civil

Service Commission); Book v. State Office Building Commission (1958) 238 Ind. 210;149 N.E. 2d. 223; State ex rei Tamminnen v. City of Eveleth (1933) 189 Minn. 229;249 N.W. 184. The earlier authorities are collected in Constantineau, Ope cit. ch.XV and Annot., 'De Facto Officers' (1911) 140 Am. St. Rep. 164, 186 if. All of thecases which are cited in connection with the next subject dealt with in the next supportthis proposition as well.

75 (1886) 118 U.S. 425.


officers and therefore their acts bound the County. Field J., who wrotethe opinion for the Court, rejected this argument. After stressing thegeneral importance of the de .facto doctrine,76 he went on:

But the idea of an officer implies the existence of an office which heholds. It would be a misapplication of terms to call one an officerwho holds no office, and a public office can exist only by force oflaw. This seems to us so obvious that we should hardly feel calledupon to consider any adverse opinion on the subject but for theearnest contention of plaintiff's counsel ... Their position is, that alegislative act, though unconstitutional, may in terms create anoffice, and nothing further than its apparent existence is necessaryto give validity to the acts of its assumed incumbent ... It is difficultto meet it by any argument beyond this statement. An uncon-stitutional act is not a law; it confers no rights; it imposes noduties; it affords no protection; it creates no office; it is, in legalcontemplation, as inoperative as though it had never been passed. 77

Norton v. Shelby County thus states a very serious limitation on theoperation of the de facto doctrine. It operates to deny the status of ade facto officer to any person who purports to fill an office which hasbeen created by an unconstitutional statute. The decision was sub-sequently reaffirmed by the Supreme Court in U.S. v. Royer78 but thestate courts are divided on the question. A majority of them haveapproved the Norton rule, but there are many which have refused tofollow it. 79 One of the most curious aspects of the judgment deliveredby Field J. in Norton is that he does not question the validity of the rulethat a person appointed or elected to a de jure office by an unconstitutionalstatute becomes a de facto officer. 80 So that although an unconstitutional

76 He pointed out that the doctrine is 'founded upon considerations of policy andnecessity, for the protection of the public and individuals whose interests may beaffected thereby. Offices are created for the benefit of the public, and private partiesare not permitted to inquire into the title of persons clothed with the evidence of suchoffices and in apparent possession of their powers and functions.' Ibid. 441.

77 Ibid. 442. At a later stage of his judgment Field J. said: 'Where no office legallyexists, the pretended officer is merely a usurper, to whose acts no validity can beattached.' Ibid. 449.

78 (1925) 268 U.S. 394, 397 (obiter).79 The cases are collected in McQuillan, Municipal Corporations (1949) s. 12.04;

Annots, ' De Jure Office As A Condition Of A De Facto Officer' (1908) 15 L.R.A.(n.s.) 94 and (1935) 99 A.L.R. 294. To the cases therein cited should be added thefollowing. In favour of Norton:

Miller v. County Commissioners of Miller County (1961) 226 Md. 105; 172 A 2d.867; State v. Ferguson (1959) 236 La. 589; 108 So. 2d. 520; Fee v. Bornhorn (1952)251 S.W. 2d. 230 (Ky. C of A); Lowe v. City of Bowling Green (1952) 247 S.W. 2d.376 (Ky. C of A); Idol v. Street (1951) 233 N.C. 730; 65 S.E. 2d. 313; Howell v.Howell (1948) 213 Ark. 298; 208 S.W. 2d. 22; Bodcaw Lumber Co. v. Jordan (1943)203 La. 482; 14 So. 2d. 98; Annoni v. Bias Nadal's Heirs (1938) 94 Fed. 513 (C.C.A.1st); Brandon v. State (1936) 27 Ala. App. 176; 173 So. 240.

Against Norton:In Re Hans (1963) 174 Neb. 612; 119 N.W. 2d 72; Jersey City v. Dept. of Civil"

Service (1959) 57 N.J. Super 13; 153 A 2d. 757; Anderson v. State (1946) 149 Tex. Cr. R.423; 195 S.W. 2d. 368; Marckel Co. v. Zitzow (1944) 218 Minn. 305; 15 N.W. 2d. 777;,Michigan City v. Brossman (1937) 105 Ind. App. 259; 11 N.E. 2d. 538.

80 (1886) 118 U.S. 425, 444-445. Indeed he refers to the nineteenth century cases'"cited in n. 71 ante, which establish the proposition with approval.


statute must be treated as if 'it had never been passed', nevertheless itcan confer sufficient colour to constitute a de facto officer. One wouldhave thought that this concession contradicted his dogmatic statementthat such a statute had no effect at all. 81 Putting that to one side, it isclear that his whole judgment rests on the simple assertion that theexistence of a de jure office is a condition precedent to the applicationof the de facto officer doctrine.

Field J. gives no reasons to justify this limitation on the doctrine andalmost all of the cases which follow his decision are content to merelyrepeat his assertion. The few courts which have ever attempted torationalize it have not found the task easy. In Kimble v. Bender theSupreme Court of Maryland explained it as follows:

The fundamental assumption of this theory is that the attempt tocreate a new office is not likely to induce people, without enquiry,to make or to submit to the action of a person on the assumptionthat he is a duly accredited and empowered officer of the characterof his representation. 82

This is unconvincing. The question is whether, if people are inducedto deal with such a person, they should be protected against the riskthat a statute which creates his office will be later declared uncon-stitutional.

The Supreme Court of Kansas made a similar attempt in In ReNorton. 83 It was there pointed out that

The strongest reasoning why the acts of de facto officers are sustainedis that the office is created by the public and put into operation aspart of a system of organized society, and a continued adminis-tration of the office becomes necessary to the proper adjustment ofits affairs and to the perpetuity of the system. This reasoning losesforce when we undertake to apply it to a de facto office. Suchoffice, not having been created by the public, and not having beenadopted into the organized system, never becomes a part of it, andits displacement does not disturb the harmony of the organisation. 84

81 There are other unsatisfactory aspects of Field J.'s judgment which should benoticed. He asserts that the fourth limb of Butler C.J.'s definition in State v. Carrollwas not intended to apply to an unconstitutional statute which purports to create anoffice. This does not seem to be correct. State v. Poulin (1909) 105 Me 224, 229;74 A 119, 124. Then again Hildreth's Heir v. McIntyre's Devisee (1829) 1 J.J. Marsh(Ky.) 206; 19 Am. Dec. 61 which is the only authority Field J. cites to support hiscentral proposition does not really support it all. Wendt v. Berry (1913) 154 Ky.586; 157 S.W. 1115. Finally he cites two cases, Carleton v. People (1862) 10 Mich.250 and Fowler v. Beebe (1812) 9 Mass. 231; 6 Am. Dec. 62 with approval in whichpersons are held to be de facto officers even though no office of any kind was in existenceat the time the acts in question were performed. It is difficult to see how a personwho acts where there is no office can be in a better position than one who acts wherethe office is created by an ostensibly valid statute.

82 (1938) 173 Md. 608, 625; 196 Atl. 409, 417.83 (1902) 64 Kan. 842; 68 N.W. 639.,84 Ibid. 845; 640.


This is also unconvincing. The fact is that when an unconstitutionalstatute ostensibly sets up an office it has been 'created by the public'.Furthermore, if the office has been exercised and its existence acquiescedin by the public, then it is unreal to say that it has not been 'adoptedinto the organized system '. The real question is whether, if its dis-placement does ' disturb the harmony' of the organization, the de factodoctrine can give limited validity to the purported acts of its incumbent.

The proposition stated by Field J. is thus seen to ultimately rest uponan a priori assumption about the nature of an unconstitutional exerciseof legislative power. It is a complete nullity which must be entirelyignored in order to preserve the constitutional balance. This argumentis stated in its most persuasive form by Judge Constantineau in hisclassic book on the de facto officer doctrine as follows:

If a legislative body, whose powers are limited by a written instru-ment, be permitted to create offices in violation of such instru-ment, and the courts are to condone such wrongdoing by holdingthe incumbents thereof officers de facto, it is easily seen that theparamount rights of the people are unduly sacrificed to avoidoccasional evils to a few individuals or to a small portion of thecommunity. To sanction such usurpation of power, is to allow thelegislature to ignore and override the sovereign will and authorityof their masters. Where one of two evils must exist, reason,justice, and expediency demand the adoption of the lesser one. 85

In this view the problem is precisely the same as that which would ariseif an individual purported to create an office for himself which wascompletely unknown to the governmental system. The mere fact thathe exercised his invented powers would not make him a de facto officerbecause there is no office in fact or in law which he purports to fill. Thatis the thrust of the first part of the passage from the judgment of Field J.which is set out above. 'The idea of an officer' does indeed 'implythe existence of an office which he holds'. It is the next step whichgives rise to the difficulty. The proposition enunciated by Field J. isthat not only must the office have a factual existence, but it must havea lawful existence as well.

There are several basic objections which can be made to any suchlimitation on the de facto doctrine. The first is that it overlooks thefact that before a statute is declared unconstitutional a citizen is notacting unreasonably if he assumes its validity. This is the real vice ofNorton v. Shelby County. It throws upon the citizen the risk that thepublic official with whom he had dealt lacks legal authority to concludethe dealing. This is so even though the official is held out by the stateitself as having that authority. Gummere C.J. makes this point veryclearly during the course of his powerful judgment in Lang v. Bayonne. 86

85 Op. cit., 61.86 (1907) 74 N.J.L. 455; 68 Atl. 90.


After pointing out that some 2,400 statutes had been passed in NewJersey during the previous ten years, and that only 400 of these hadcome before the courts, he said :

To require the citizen to determine for himself, at his peril, to whatextent, if at all, the legislature has overstepped the boundaries definedby the constitution in passing this mass of statutes, would be toplace upon him an intolerable burden, one which it would beabsolutely impossible for him to bear-a duty infinitely beyondhis ability to perform. In my opinion the provisions of a solemnact of the legislature, so long as it has not received judicial con-demnation, are as binding on the citizen as is the judgment of acourt rendered against him so long as it remains unreversed. 87

This, in the present submission, goes to the very root of the problem.The statement by Field J. that an unconstitutional statute is a completeand utter nullity is one that can only be made after a court has madeits decision. It is easy to be wise at that point of time, but before thenthe statute was an apparently valid constituent of the vast array of legalprovisions which each citizen refuses to obey at his peril. Looked atfrom this point of view there is, as one commentator has put it, onlyone effective answer to the statement of Field J.-' It is not true '.88

This sentiment was stated in a far more sophisticated form byHughes C.J. in Chicot County Drainage District v. Baxter State Bank89

in the following passage which represents a clear repudiation of theutter nullity doctrine by the Supreme Court of the United States.

It is quite clear, however, that such broad statements as to theeffect of a determination of unconstitutionality must be taken withqualification. The actual existence of a statute, prior to such adetermination, is an operative fact and may have consequences whichcannot be justly ignored. The past cannot always be erased by anew judicial declaration. The effect of the subsequent ruling asto invalidity may have to be considered in various aspects,-withrespect to particular relations, individual and corporate, and parti-cular conduct, private and official. Questions of rights claimed tohave become vested, of status, of prior determinations deemed tohave finality and acted upon accordingly, of public policy in thelight of the nature both of the statute and of its previousapplication, demand examination. These questions are among themost difficult of those which have engaged the attention of courts,state and federal, and it is manifest from numerous decisions thatan all-inclusive statement of a principle of absolute retroactiveinvalidity cannot be justified. 90

87 Ibid. 460; 102. See the similar remarks of Carroll J. in Wendt v. Berry (1913)154 Ky. 586, 590; 157 S.W. 1115, 1119; of Parke J. in Kimble v. Bender (1938) 173Md. 608, 615; 196 A 409, 417; and of Spear J. in State v. Gardner (1896) 54 OhioSt. 24, 38; 42 N.E. 999, 1005.

88 Field, The Effect of an Unconstitutional Statute (1935) 91.89 (1939) 308 U.S. 371.90 Ibid. 374-375.


It is submitted that the application of this approach to the presentproblem leads to the conclusion that there may be an office that can befilled by a de facto officer in many situations where the office is establishedby an unconstitutional statute. Those situations will be examined inthe next part of this article. The present concern is to combat theconceptualism of Field J.'s view of an unconstitutional statute whichwould deny the possibility of applying the doctrine in such a situation.

The second objection to Norton v. Shelby County is that it ignores thefact that the de facto doctrine was designed to deal with effects and notcauses. It does not look at the nature of the defect in the officer's titlebut rather at whether members of the public were justified in supposinghim to be a properly authorised officer. This was the precise basis ofthe judgment of Butler C.J. in State v. Carroll and is the rationale ofthe whole doctrine. The same considerations of public policy applywhether a person has been invalidly appointed to a de jure office orwhether the office itself is invalidly created. Two Arkansas cases willillustrate the point.

In Howell v. Howe1l91 the Arkansas Supreme Court held that the statutewhich established the Second Division of the Pulaski County Court ofChancery was unconstitutional. It then adhered to the Norton ruleand declared that all of the decrees made by the Chancellor of the SecondDivision were null and void. This decision created great consternationin Arkansas92 because the Chancellor had made more than 2000 decrees.The outcry was such that within a few months the Supreme Courtreversed itself in Pope v. Pope93 on the ground that the portions of thestatute which created the Second Division were valid and could besevered from the rest of it. Thus the Chancellor could be treated as ade facto judge. The Court went to great lengths to make it clear, how-ever, that it was not doubting the validity of the Norton rule. 94However, the confusion created by the application of the rule in Howellv. Howell must surely be regarded as a powerful criticism of its validity.9sIt produces the very situation that the de facto doctrine was designedto avoid by reference to the very technicalities that it was intended toovercome.

In 1909 the Supreme Court of Maine treated this consideration asdeterminative when it was confronted with the choice of either followingthe Norton rule or rejecting it. 96 Spear J. explained the Court's con-clusion as follows:

91 (1948) 212 Ark. 600; 208 S.W. 2d. 22.92 Note, (1949) 6 Wash. and Lee L. Rev. 84.93 (1948) 213 Ark. 321; 210 S.W. 2d. 319.94 The dissent of Griffen-Smith C.J. points out however that, in his view, the only

reason for reversing Howell v. Howell was the vociferous clamourings of the publicand the bar.

9S See Beaver v. Hall (1920) 142 Tenn. 416; 217 S.W. 649.96 State v. Poulin (1909) 105 Me. 224; 74 Ad. 119.


Follow one or the other we must. Follow either we may. Ourconcern here is to discover which the better coincides with thereason for, and the purpose of, the de facto doctrine. And wemay say here ... that we are unable to discover any difference, inreason, for declaring an officer to be de facto, whether he holdsde .facto or de jure office, if he has occupied it with the usual insigniaof a de facto officer. The authorities are in harmony that the defacto doctrine was invented to deal with effects, not with causes.The effects only can be reached. The causes cannot. The official actsare accomplished. If the effects are alike, it is immaterial that thecauses differ. The effects, whether from a de jure or de facto office,are alike. Hence, the acts of the officer occupying either positionshould be declared de facto. 97

It is submitted then that whether the Norton rule is approached eitherin terms of legitimate reliance on the ostensible validity of an uncon-stitutional statute or in terms of the purposes and policies of the de factodoctrine the same result is reached. The rule just does not make sense.

There is also a third point to be made in relation to the rule whichis just as important a criticism of it as the two which have already beendiscussed. This is that a great many of the courts which pay verbalhomage to the Norton rule have developed so many exceptions to itthat the rule is more honoured in statement than in application. Insome States, for example, it is held that, even if the statute authoriz-ing the creation of an office is unconstitutional, nevertheless the incumbentwill be treated as a de facto officer if the office is one known to the lawsof that State. Norton's case is explained as being dependent upon thefact that Boards of County Commissioners had never been known inTennessee. Using this technique, the acts of a Justice of the Peace,98 aJudge of a County Court,99 and the Board of Supervisors of a County'have been upheld. A similar exception has been created where a legaloffice having functions of the same nature as the one in question is inexistence. Thus where the office of County Attorney was recognizedin the Constitution of Texas, a Criminal District Attorney whose officewas created by an unconstitutional statute, was held to be a de factoofficer because he performed the same functions as a County Attorney.2Some States have even gone so far as to hold that if the office had a

97 Ibid. 231; 122.98 Kimble v. Bender (1938) 173 Md. 608; 196 At!. 409 (Office referred to in Con-

stitution).99 Butler v. Phillips (1906) 38 Colo. 378; 84 P. 480 (Office referred to in Constitution).1 Leach v. People (1887) 122 Ill. 420; 12 N.E. 726 (Office recognized by earlier

statutes).2 Anderson v. State (1946) 149 Tex. Crim. R. 423; 195 S.W. 2d. 368. '... where

the office of similar functions does exist, and the name of the officer only is changed,the duties being the same as that of the established de jure office, a mere change ofname of the officer would not destroy the office.' Ibid. 430; 371. See also: Stateex rei A.G. v. Judge of 8th Judicial Circuit (1905) 142 Ala. 87; 38 So. 835 (Statutecreating judge of 16th circuit unconstitutional but same tasks as judge of old valid8th circuit).


potential legal existence then an unconstitutional attempt to establishit by a particular statute does not exclude the de facto doctrine. 3

Other exceptions relate to situations where more officers than thereare de jure offices to fill have been appointed,4 where officers have beenappointed before the effective date of the statute authorizing the creationof an office,s and where an officer continues to exercise the power of anoffice after it has been abolished. 6 Then again the Supreme Court ofNew Mexico has held that the Norton rule does not apply 'whereuncertainty, chaos and confusion' would result. 7 This last exceptionis a superb example of both having one's cake and eating it. TheNorton rule is all right as long as it causes no confusion, but if it does,then that confusion creates an exception to it! Finally, and probablymost important of all, it is settled law in every American jurisdictionthat the acts of a de facto municipal corporation organized under anunconstitutional statute are valid. 8 The reason for this is that theconsequences of completely invalidating the acts of a municipal cor-poration would be very far reaching and catastrophic. 9 Field J. didnot mention this rule in Norton although it was well established andcontradicted the central proposition in his judgment. Later judicial andacademic critics of the Norton rule have not failed to point this out.10

The fact that so many of the courts which verbally approve the Nortonrule have seen fit to formulate such a variety of exceptions to its operationcasts considerable doubt on its validity. All of the exceptions involvestatutes which make unconstitutional attempts to create offices. Accord-ing to Field J. these statutes must be treated as though they had neverbeen passed. And yet, in each of these exceptions, courts have heldthat the incumbent of the office must be treated as a de facto officer.When this is taken in association with the other two objections to therule stated above, it is submitted that the Norton rule is revealed as athreadbare exercise in juristic conceptualism. 11

3 Smith v. Lynch (1876) 29 Ohio St. 261 (Board of Health could be validly created);Buck v. Eureka (1895) 109 Cal. 504; 42 Pac. 243 (Office of City Attorney could bevalidly created); Clarke v. Easton (1888) 146 Mass. 43; 14 N.E. 795 (Office of RoadSupervisor could be validly created).

4 E.g. Walcott v. Wells (1890) 21 Nev. 47; 24 Pac. 247. (District Judges increasedfrom three to four under unconstitutional statute).

5 E.g. State ex reI Bockmeir v. Ely (1907) 16 N.D. 569; 113 N.W. 711.6 E.g. Arnold v. Hilts (1916) 61 Colo. 8; 155 Pac. 316.7 In Re Santillanes (1943) 47 N.M. 140; 138 P. 2d. 503. (Unconstitutional statute

creating Juvenile Court which had been in existence for several years.)8 See generally: Tooke,' De Facto Municipal Corporations' (1928) 37 Yale L. J.

935.9 City of Albuquerque v. Water Supply Co. (1918) 24 N.M. 368; 174 P. 217;

Ackerman v. Baird (1938) 42 N.M. 233; 76 P. 2d. 947; Annot. 99 A.L.R. 294, 314-317.10 E.g. Lang v.Bayonne (1907) 74 N.J.L. 455, 470; 68 A 90, 105 per Gummere C.J.

See n. 11 post.11 The Norton rule has had a vitriolic academic press. See e.g. Field, The Effect

of an Unconstitutional Statute (1935) ch. IV; Jarrett,' De Facto Public Officers'(1936) 9 S. Cal. L. Rev. 189; Harris, 'The Validity of Acts of Officers Occupying

58 Federal La}v Review [VOLUME 2

ITI. Some Relevant Criteria

The elements of a true claim to de .facto office are not described inany pat formula but are to be looked for in all the attendant circum-stances, the basic consideration being always the convenience ornecessity of the public or the preventl0~1 of prejudice to disinterestedthird persons. 12

The analysis this far has been directed to demonstrating that theNorton rule places an unnecessary restriction on the operation of thede facto officer doctrine in its relation to unconstitutional offices. Therehas been no attempt to argue that the doctrine should be automaticallyapplied in such cases. The argument is rather that any limits which areto be placed on the operation of the doctrine should be based on a morerational foundation than the conceptualism of the Norton rule. It nowbecomes necessary to ascertain the nature of the limits which may benecessary. Furthermore the analysis will not be confined to the problemof unconstitutional offices. It will also be necessary to consider thevalidity of the view, which has been accepted ever since State v. Carroll,that an unconstitutional appointment to an existing office automaticallyconfers de facto officer status on the appointee.

There are two preliminary difficulties associated with any attempt toformulate criteria to govern the application of the doctrine in this area.The first is that the decided cases give very little, if any, assistance. Thisis only to be expected because the doctrine tends to be used rather thansubjected to any detailed judicial analysis. It is functional, in the sensethat it produces results, rather than analytical, in the sense that it evergets subjected to detailed investigation in its own right. Thus most ofthe cases cited in the previous section are content to state the rulesgoverning the application of the doctrine in anyone of the followingforms. A person who is appointed to an established office by an uncon-stitutional statute is a de facto officer. There can be no de facto officerif the statute creating the office he purports to fill is unconstitutional.A person who purports to exercise the powers of an unconstitutionaloffice is a de facto officer. These rules are then applied to produce adesired result without any discussion of the difficulties implicit in them.

The second difficulty stems from the fact that the consequence ofapplying the doctrine in this area is to give limited validity to an uncon-stitutional exercise of power. In other words a common law doctrineis being used to validate acts which a Constitution declares invalid. Itwas argued in the previous section that this fact does not forbid the

Offices Created Under Laws Declared Unconstitutional' (1938) 3 U. Newark L. Rev.123; Tooke,' De Facto Municipal Corporations' (1928) 37 Yale 935; Wallach, 'DeFacto Office' (1907) 22 Pol. Sci. Qu. 460; Comment, (1952) 12 La. L. Rev. 200;Note, (1949) 1 Mercer L. Rev. 120; Note (1949) 6 Wash. & Lee L. Rev. 84; Note,(1944) 29 Minn. L. Rev. 36; Note, (1938) 86 U. Pa. L. Rev. 55t.

12 De Fazio v. City of Hobokin (1950) 9 N.J. Super 486, 489; 75A 2d. 551, 554per Drewer C.J.


application of the doctrine, but is a relevant consideration. Even atcommon law the de facto doctrine yielded when there were policiesinvolved which outweighed public inconvenience and the frustration oflegitimate reliance which are the foundation of the doctrine. 13 It wouldbe surprising therefore if there were not some basic policies reflected ina constitutional document which overcome certain claims to de .factostatus. There is a tension between a constitutional provision whichinvalidates an act and a common law doctrine which gives it limitedvalidity. This tension cannot be ignored by an automatic applicationof the de facto officer doctrine any more than it can be by the automaticrefusal to apply it in these cases.

One relevant factor which should be taken into account is the lengthof time the unconstitutional office or officer has acted without any legalchallenge. This may be important in two situations. In one wherethere has been a considerable lapse of time the argument for the applica-tion of the doctrine is strong, almost conclusive. In the other wherethere is an immediate and public legal challenge the argument is veryweak. Take for example the facts of Norton v. Shelby County becauseit might be that the actual decision in that case was correct. There, itwill be remembered,14 the Justices of the Peace who composed the CountyCourt publicly refused to recognize the statutory abolition of their office.They immediately instituted legal proceedings to challenge the validity ofthe Board of County Commissioners which was established by the samestatute and to which the functions of the County Court had been trans-ferred. The bonds in question were issued during the course of theseproceedings.

In these circumstances it might have been said that it was unreasonablefor a member of the public to rely upon the ostensible powers of theBoard to issue the bonds.15 The colour conferred by the unconstitutionalstatute seems to have been dimmed by the immediate challenge to itsvalidity. Such a view would have been consistent with the only decisionrelied on by Field J. to support his decision. That was Hildreth's Heirsv. McIntyre's Devisee16 decided by the Kentucky Court of Appeals in1829. There the Kentucky Legislature passed a statute which pur-ported to abolish the Court of Appeals established by the State Con-stitution and to substitute a new court of the same name. The judgesof the existing court refused to recognize the constitutionality of this

13 Ante pp. 43-46.14 Ante p. 50.

15 , The inarticulate ground for the decision must have been a strong policy againstunauthorized extensions of the public debt-a grave danger in that period. Thedecision may have been influenced also by the fact that the constitutionality of thestatute in question was notoriously in grave doubt when the bonds were issued underits authority.' Note, (1925) 39 Harv. L. Rev. 373, 374.

16 1 J. J. Marsh 206; 19 Am. Dec. 61.


legislative action and continued to publicly exercise their functions.In Hildreth's case they had to consider the validity of an order of thenew court upon which it was sought to levy execution. It was heldthat the statute creating the new court was unconstitutional and thatthe members of it could not be regarded as de facto judges.

Although there are certain passages in the judgment which, if takenout of context, support the Norton rule, it is clear that the decision turnedon the fact that there was an existing de jure court openly acting through-out the relevant period and openly questioning the constitutionality ofthe new court. This is certainly the view of the case which has beentaken in the Kentucky decisions. 17 Such a limitation on the de factoofficer doctrine seems reasonable. It may be formulated as follows.Where an unconstitutional statute purports to abolish an existing office,and to transfer its functions to a new one, the incumbents of the newoffice may not derive sufficient colour to give them de .facto status if theold officers refuse to recognize the validity of the statute and openlyflout and challenge the validity of its provisions. Another closelyrelated limitation suggests itself. It might be said that whenever a sub-stantial doubt has been raised to the constitutionality of the statutorycreation of an office, or appointment of an officer, by a well publicizedlegal challenge the colour conferred by the statute is weakened. Itwill be difficult to apply the doctrine in such a case because the personconcerned to uphold the validity of the official act in question will beunable to demonstrate legitimate reliance.18

JlC On the other hand if there is no immediate challenge to the validityof an office, and the incumbent purports to exercise the powers attachedto it for many years and without question, it seems a classic situation inwhich the doctrine should be allowed to operate. Take for examplethe constitutional vicissitudes of the Commonwealth Court of Con-ciliation and Arbitration. The Court was established by statute in 1904and vested with both arbitral and judicial functions. It was to beconstituted by judges appointed for a term of seven years. Between1904 and 1918 the Court exercised its powers of conciliation and arbitra-tion in regard to industrial disputes without question. Then in 1918the High Court held in Alexander's case19 that the Court was uncon-situtional because the judicial power of the Commonwealth could notbe exercised by judges who did not hold life appointments. The Courtwas reconstituted to comply with this objection and continued to exercise

17 E.g. Wendt v. Berry (1913) 154 Ky. 586, 589; 157 S.W. 1115, 1117; Lowe v. Cityof Bowling Green (1952) 247 S.W. 2d~ 386.

18 This is a question of fact however and there may even be cases where althoughthere is some doubt as to the constitutionality of the office the doctrine \vijI never-theless apply.

19 Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. (1918) 25C.L.R.434.


its arbitral and judicial function for almost forty years. Then in 1957the Privy Council held that it was unconstitutionally created because itviolated the separation of powers embodied in the Australian Con-stitution.20 A court exercising the judicial power of the Commonwealthcannot be vested with non-judicial powers.

The validity of the judgments and orders of the Court between 1904and 1918 and between 1918 and 1957 were never called in questionbefore the Australian courts. It seems clear however that if they hadthe de facto doctrine would have validated them. Where there is ageneral assumption of validity extending over a long period of time theclaim to de facto status cannot be stronger. The chaos and confusioninvolved in a retroactive invalidation of acts performed over a longperiod could not be countenanced.

Another factor which seems to be relevant is the nature of the con-stitutional defect in the office or the officer's appointment to it. Wherethe defect is of a technical nature which could be corrected by the legis-lature the argument in favour of an application of the de facto officerdoctrine is very strong. This can be illustrated by reference to thosedecisions referred to in the previous section where courts which normallyfollow the Norton rule have created exceptions to it.21 These exceptionsnearly all arise when the unconstitutional office is one recognized bythe laws of the jurisdiction in question. They appear to be based onproposition that, even accepting the Norton rule, there is no objectionto conferring de facto status where the legislature could have createda legal office. Defects might be described as technical for this purposeif they relate to the manner and form in which admitted legislative powersmay be exercised.

At the other end of the constitutional scale are express limitations orprohibitions on the extent of legislative power. Such limitations onlegislative power are far more common in the United States Constitutionand in the various State Constitutions than they are in their Australiancounterparts. We have no Bill of Rights or a Due Process clause.22

The point however is the same in both countries. It is that there maybe constitutional policies and provisions which are deemed to be soimportant that their thrust should not be curbed by the application ofthe de facto doctrine. In other words there may be situations in whichpublic inconvenience and the frustration of legitimate reliance must giveway to the retroactive invalidation of official acts in order to vindicate

20 Attorney-General (Commonwealth) v. The Queen; Ex parte The Boilermakers'Society of Australia (1959) 95 C.L.R. 529.

21 Ante pp. 56-57.22 See ~enerally: Kadish,' Judicial Review in the High Court and the United States

Supreme Court' (1959) 2 Melb. U.L.R. 4 and 127; Pannam,' Travelling Section 116with a U.S. Road Map' (1963) 4 Melb. U.L.R. 41, 43-48.


a constitutional boundary, or to guarantee a constitutional right. Thedecision of the Supreme Court of the United States in Glidden v.Zdanok23 may be taken as an illustration.

There it was sought to attack the validity of the proceedings in thecourt below on the basis that the judges had not been appointed underArticle III of the United States Constitution. It was argued that onlyjudges with the life tenure and guaranteed salaries provided for in thatArticle could exercise the judicial power of the United States. Thepoint was not raised in the lower court and it was contended that thede facto doctrine foreclosed the point being taken on appeal. Thiscontention reflected the traditional rule in the federal24 and state25

courts that the de facto doctrine prevented a conviction being eitherattacked on appeal or collaterally on the basis that the judge had noauthority to try the case unless the point was raised at the trial. TheSupreme Court however refused to apply the rule in this case. Harlan J.,who wrote the opinion of the Court, pointed out that :

The alleged defect of authority here relates to basic constitutionalprotections designed in part for the benefit of litigants ... It shouldbe examinable at least on direct review, where its considerationencounters none of the objections associated with the principle ofres judicata, that there be an end to litigation. At the most is weighedin opposition the disruption to sound appellate process entailed byentertaining objections not raised below, and that is plainly insufficientto overcome the strong interest of the federal judiciary in maintainingthe constitutional plan of separation of powers. 26

This is an important decision because it recognizes that the de factodoctrine cannot be automatically applied to preclude a challenge to anofficer's authority where that challenge is based on a fundamental con-stitutional policy. The fact that the prosecution has relied on theostensible authority of the judge and that the point was not raised bythe defence are not as important as the preservation of the constitutionalpolicy in question. Glidden was a case of appellate review of a con-viction and Harlan J. referred to the additional res judicata difficulty

23 (1962) 370 U.S. 530.24 Ex parte Ward (1899) 173 U.S. 452; McDowell v. U.S. (1895) 159 U.S. 596;

Manning v. Weeks (1881) 139 U.S. 504; In re Ah Lee (1880) 5 Fed. 899 (D.C. Oregon).All of these cases involved the invalid appointment of judges to a de jure office becausethe Norton rule forbade the application of the de facto doctrine to an unconstitutionallyestablished court.

25 In Re Hans (1963) 174 Neb. 612; 119 N.W. 2d. 72; State v. Ness (1954) 75 S.D.373; 65 N.W. 2d. 923; Marckef Co. v. Zitzow (1944) 218 Minn. 305; 15 N.W. 2d.777; In Re Santillanes (1943) 47 N.M. 140; 138 P 2d. 503; Ridout v. State (1930) 161Tenn. 248; 30 S.W. 2d. 255; Nagel v. Bosworth (1912) 148 Ky. 807; 147 S.W. 840;State ex ref. Bafes v. Bailey (1908) 106 Minn. 138; 118 N.W. 138; State ex ref. Bock-meir v. Ely (1907) 16 N.D. 569; 113 N.W. 711; Butler v. Phillips (1906) 38 Col. 378;88 P. 480; Curtin v. Barton (1893) 139 N.Y. 505; 34 N.E. 1093; Burt v. Winona &St. P. R. Co. (1884) 31 Minn. 472; 18 N.W. 285 ; State v. Carroll (1871) 38 Conn.449; 9 Am. Rep. 409.

26 (1962) 370 U.S. 530, 536.


which might be met in applying the same rule in proceedings where aconviction is attacked collaterally. However even in this area theCourt of Appeals for the Second Circuit, relying on Glidden, has recentlyallowed a collateral attack on a conviction some six years after it wasobtained.27 The attack was based upon an argument that the trialjudge was a recess appointment who had not been confirmed by theSenate and hence did not have life ten~re and a guaranteed salary. Inthe result the Court refused to uphold the attack but the important pointis that it was allowed.

This decision has been criticized as an unjustified extension of Glidden. 28

There seems to be little merit in the criticism. After all if a person isconvicted and sentenced for committing a statutory crime and it latertranspires that the legislature had no constitutional power to enact thestatute almost all the American state courts hold that he can be releasedon habeas corpus in spite of the res judicata objection. 29 It is thereforedifficult to appreciate why a convicted person ought to be automaticallyforeclosed by the de facto doctrine from collaterally questioning thevalidity of an equally important constituent element in his detention,that is the tribunal which convicted him. The importance of Gliddenis that it denies the propriety of an automatic application of the de factodoctrine and instead directs attention to the nature of the constitutionaldefect which is alleged.

Another relevant factor to be taken into account in applying the defacto doctrine in these cases would seem to be the nature of the partic-ular act which is to be validated by reference to it. If the act in questionrelates to personal status the pressures pointing towards an applicationof the doctrines will be very strong indeed. Take for example officialacts like marriage, divorce, adoption or naturalization. Or again takethe situation where the validity of a normal commercial contract for thesupply of goods is in question. In such cases the hardship and confusionwhich would inevitably follow a retroactive invalidation of such actsmake them classic cases where the de facto officer doctrine should operate.

On the other hand where an individual has been deprived of his prop-erty or liberty by governmental action the pressures point away froman application of the doctrine. Examples of such action might be foundin the case of criminal convictions30 and the compulsory acquisition ofprivate property. In these cases members of the public have not reliedon the apparent authority of the office or officer to perform their functions.

27 U.S. v. Allocco (1962) 305 F. 2d. 704.28 E.g. Note, (1963) 38 N.Y.U.L.Rev. 169.29 Annot., "Validity And Effect Of Judgment Based Upon Erroneous View As

To Constitutionality Or Validity Of Statute Or Ordinance Going To The Merits'(1945) 167 A.L.R. 517.

30 Note, ' The De Jure-De Facto Controversy and its Effect Upon Legal Rights'(1961) 1 Washburn L.J. 458, where it is argued that the Norton rule should be retainedin criminal cases.


The only reliance has been by the government which wants to exercisethe compulsory power. In such a case the constitutional limitationon the government's power which has been violated may have moresignificance than the case where only the interests of members of thepublic are concerned.

Because there is this distinction in terms of policy between the variousofficial acts which the doctrine may be called upon to validate it becomesnecessary to ascertain whether the doctrine is capable of partial applica-tion. That is to say can it be applied to validate a divorce or a grantof probate and yet not applied so as to release a person who has beenconvicted of a crime when all of these acts are performed by the sameunconstitutional court? There is no direct authority on the point. It issubmitted however that it should be capable of such an application. Thedoctrine applies to the facts of a particular case and does not attach apermanent de facto label on an officer for all purposes. This has beenrecognized in general terms in the early common law cases which havebeen discussed above. 31 Moreover such a view is consistent with theflexibility essential to a concept which is rooted in considerations ofpublic policy.

It will have been noticed that

unconstitutional statutes and de facto officers · 2018. 10. 27. · jarrett, 'defacto public...

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