DE FACTO. Actually; in fact ; in deed. A term used to denote a thing actually done.
An officer de facto is one who performs the duties of an office with apparent right, and under claim and color of an, appoint meat, but without being actually qualified in law so to act. Brown v. Lunt, 37 Me. 423.
One who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. 6 East 368, where Lord Ellenborough and a full court of K. B. adopted this definition of Lord Holt in 1 Raym. 658, which it is said "has never been questioned since in England," per But ler,. C. J., in the leading case of State v. Car roll, 38 Conn. 449, 9 Am. Rep. 409, where the common-law learning on the subject is col lected.
Where there is an office to be filled, and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto, and are bind ing on the public ; McDowell v. U. S., 159 U. S. 596, 16 Sup. Ct. 111, 40 L. Ed. 271.
An officer in the actual exercise of execu tive power would be an officer de facto, and as such distinguished from one who, being legally entitled to such power, is deprived of it,—such a one being an officer de jure only. An officer holding without strict legal authority; 2 Kent 295.
An officer de facto is frequently consider ed an officer de jure, and legal validity al lowed his official acts; State v. Anderson, 1 N. J. a 318, 1 Am. Dec. 207; Com. v. Fowler, 10 Mass. 290; Laver v. MeGlachlin, 28 Wis. 364; Conover v. Devlin, 24 Barb. (N. Y.) 587; Whiting v. City of Ellsworth, 85 Me. 301, 27 Atl. 177; Petition of Town of Ports mouth, 19 N. H. 115; Burton v. Patton, 47 N. C. 124, 62 Am. Dec. 194; Gregg Tp. v. Jamison, 55 Pa. 468; Kimball v. Alcorn, 45 Miss. 151; Hussey v. Smith, 99 U. S. 20, 25 L. Ed. 314; People v. Weber, 86 Ill. 283; State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409; State v. Davis, 111 N. C. 729, 16 S. E. 540; State v. Lee, 35 S. C. 192, 14 S. E. 395; Zabel v. Harshman, 68 Mich. 273, 42 N. W. 44; 7 L. R. H. L. 894. But this is so only so far as the rights of the public and third persons are concerned. In order to sue or defend in his own right as a public officer, he must be so de jure; People v. Weber, 89 Ill. 347. An officer de facto incurs no liabil ity by his mere omission to act; Olmstead v. Dennis, 77 N. Y. 378; Snyder v. Schram, 59 How. Pr. (N. Y.) 404; but see Thayer v. Printing Co., 108 Mass. 523; Providence Steam-Engine Co. v. Hubbard, 101 U. S. 192, 25 L. Ed. 786.
An officer de facto must be submitted to as such until displaced by a regular direct pro ceeding for that purpose; Ex parte Moore, 62 Ala. 471; 4 East 327; Buncombe Turnpike
Co. v. McCarson, 18 N. C. 306; he is a legal officer until ousted; Board of Auditors of Wayne County v. Benoit, 20 Mich. 176, 4 Am. Rep. 382.
An officer acting under an unconstitution al law, acts by color of title, and is an offi cer de facto; Com. v. McCombs, 56 Pa. 436; Watson v. McGrath, 111 La. 1097, 36 South. 204 ; State v. Gardner, 54 Ohio St. 31, 42 N. E. 999, 31 L. R. A. 660; Lang v. City of Bayonne, 74 N. J. L. 455, 68 Atl. '90, 15 L. R. A. (N. S.) 93, 122 Am. St. Rep. 391, 12 Ann. Cas. 961; State v. Poulin, 105 Me. 224, 74 Atl. 119, 24 L. R. A. (N. S.) 408, 134 Am. St. Rep. 543 ; State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409 ; Donough v. Dewey, 82 Mich. 309, 46 N. W. 782 ; Cocke v. Halsey, 16 Pet. (U. S.) 71, 10 L. Ed. 891, where the office was an existing one ; contra, Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178, where the office was created by the same act. The discussion of this point has in almost every case included the consideration of what may be assumed to be a rule, when properly understood, that there cannot be a de facto officer without a de jure office; Dill. Mun. Corp. § 276. In one case it was said that a de facto office cannot exist under a constitutional government; Hawver v. Sel denridge, 2 W. Va. 274, 94 Am. Dec. 532 ; and speaking through• Mr. Justice Field in the much discussed case of Norton v. Shelby County, above cited from 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178, the court held that acts done by officers appointed under an unconstitutional statute before it was de clared unconstitutional were void. In an L. R. A. note to the New Jersey case above cited, which may be referred to for a col lection of cases, it assumed that the doc trine of the Supreme Court case is supported by a "decided, preponderance of authority." The cases cited in the note, however, while making a strong showing for a rule that there must be a de jure office, seem to estab lish an overwhelming weight of authority in support of the doctrine above stated, that until the act is declared unconstitutional there is a de jure office and therefore a de facto officer whose acts are to be considered valid. The opinions in the Connecticut, New Jersey and Maine cases, the last two of which take direct issue with Mr. Justice Field, and the first of which was decided be fore it, seem to leave no logical support for his opinion.