principle may not apply in some cases to the establishment of small districts for the construction of important public works; districts, the establishment of which, in view of the purpose for which the tax is to be laid, is equivalent to the singling out of a few persons for invidious discrimination. It has been held in one case that a statute was void which, as to certain portions of a city street, empowered the common council to cause it to be improved in a manner exceptionally expensive, at the cost of the abutting owners and against their will, when as to all the other streets of the city the owners of the larger proportion of the frontage must petition for such an improvement before it could be ordered.1 The statute was looked upon as an abuse of the legislative power to apportion taxes; as perhaps it was. But the case must be very extraordinary to warrant the court in holding that the legislature, in acting upon a subject within its admitted authority, has deprived itself of power by abusing it. It must in effect be a case in which the legislature, while assuming to do one thing which was within its power, has actually attempted another which was not.

1 Howell v. Bristol, 8 Bush, 493, 497. Compare Covington v. Casey, 3 Bush, 698; Washington Avenue, 69 Pa. St., 352.

2 In Arbegust v. Louisville, 2 Bush, 271, 275, Williams, J., has the following remarks regarding the change of taxing districts by extension of city boundaries: "When, in the judgment of the legislature, the interest of a suburban population demands local regulations, and the peace, tranquillity and order of the public indicates that such is necessary, we cannot doubt its constitutional power to so enact, nor question its power to tax, for such purposes, the real as well as the personal estate of the people, nor the large as well as the small lots included therein; for it is more consonant with the entire genius, equality and justice of our constitution and laws, that each should bear the burdens of that government which protects his person and property according to the worth of his estate, than to discriminate against the small in favor of the large property holders. But whatever may be said of the intrinsic justice of such a measure, there is no power in the courts to control this, when the taxing power is conferred in good faith to uphold local government and give police regulations to the population, and not merely to embrace taxable property for revenue purposes in order to lighten the burdens of others."

CHAPTER VIII.

OFFICIAL ACTION IN MATTERS OF TAXATION.

Necessity for official action. Taxation is an act of government. Government can only perform its functions by means of officers, and must make all its demands upon its citizens through the medium of official action. However just it may be that an individual, in any condition or under any specified circumstances, should contribute a part of his means to government revenues, there is no lawful method of compelling him to do so except through the compulsion of official process. No individual as such, or by virtue of his citizenship, can compel another to perform his duty to the state. He must come clothed with the authority of the state for the purpose, or, in contemplation of law, he comes as a trespasser, whose lawless intrusion may rightfully be resisted and repelled.1

Officers, who are. An office is defined to be a public charge or employment, and he who performs the duties of that office is an officer. There are legislative, executive and judicial officers, with duties pertaining to their respective departments of the government, and there are also inferior officers, commonly designated ministerial, whose duty it is to execute mandates lawfully directed to them by superiors, whether of one department or of another.3 The proceedings in tax cases are intrusted by the law in part to officers who perform mere ministerial duties, and in part are confided to those who, though not belonging to the judicial department, have functions which in a certain sense are judicial.

1 A sale for taxes is invalid, and a deed given on it a nullity, if based on a levy made by an unauthorized officer. Morris v. Tinker, 60 Ga., 466. The enforcement of an assessment made by an unauthorized officer will be enjoined. Union Pac. R. Co. v. Donnellan, 2 Wy., 459.

2 Marshall, Ch. J., in United States v. Maurice, 2 Brock., 96, 102. Bouvier's definition of an officer is "one who is lawfully invested with an office;" which seems to exclude what are known as officers de facto.

3 Bouvier's Dict., tit. Officers; People v. The Governor, 29 Mich., 320.

Officers de facto. It is sometimes found that the person who is performing the duties of an office is not the one to whom the law, if properly followed, would have confided it. This may happen from an uncertainty regarding the method by which the officer should be chosen, a dispute of fact concerning the result of the election which has been held, or from. many other causes. If, in any such case, a person claiming to be chosen solves the doubt in his own favor, and takes possession of the office, and if the public acquiesce in his assumption, he then performs the duties of the office, and comes within the definition which has been given of an officer. But while he is an officer in fact, if he is not rightfully such he may at any time be ousted of his position by judicial proceedings, instituted in behalf of the state, at the instance of the public prosecutor. Perhaps also the law of the state will allow the person rightfully entitled, and who, by the wrongful possession, is excluded from the office, to institute a proceeding for the purpose on his own behalf. From what has been said, it will be seen that there may therefore be officers de jure and officers de facto. An officer de jure is one who is not only invested with the office, but has been lawfully appointed or chosen, and therefore has a right to retain the office and receive its perquisites and emoluments. An officer de facto is defined to be one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. He comes in by claim and color of right, or he exercises the office with such circumstances of acquiescence on the part of the public as at least afford a strong presumption of right, though by reason of some defect in his title, or of some informality, omission or

1 Parker v. Kett, 1 Ld. Raym., 658, per Holt, Ch. J.; King v. Corp. of Bedford Level, 6 East, 356, 368, per Ellenborough, Ch. J.; Tucker v. Aiken, 7 N. H., 113, 140; Davis v. Police Jury, 1 La. An., 288; Ray v. Murdock, 36 Miss., 692. "An officer de facto is one who exercises the duties of an office under color of appointment or election to that office." Storrs, J., in Plymouth v. Painter, 17 Conn., 585, 588. To the same effect is Brown v. Lunt, 37 Me., 423, 438; Strang, Ex parte, 21 Ohio St., 610. An ineligible party, appointed and actually performing the duties of the office, is an officer de facto. Wolfe v. Murphy, 60 Miss., 1.

As to what is sufficient proof of official right, see Bird v. Perkins, 33 Mich., 28. A deputy collector's act in making a sale is the act of the collector. Villey v. Jarreau, 33 La. An., 291.

want of qualification, or by reason of the expiration of his term of service, he is unable to maintain his possession, when called upon by the government to show by what title he holds it. It is immaterial in what the defect consists, or whether the claim is in good faith or merely colorable. The public acquiescence and reputation attach certain important consequences to his occupation of the office, which the interest of the state does not permit to depend upon his own motives or the degree of plausibility which attaches to his claim.2

1 Blackwell on Tax Titles, 92-3; Wilcox v. Smith, 5 Wend., 231.

2 In several recent cases, where persons have been performing official functions under assumed legislative authority which proved to be unconstitutional, the position has been taken, that one who acts as an officer under legislation of this nature could not be an officer de facto, because the legislation was no law and consequently could give no color of right. It has also been insisted, that an officer de facto always is one who comes in by color of appointment or election by the authority having competent power to appoint or elect; so that, if any office is elective, it matters not that the governor claims and exercises the right to appoint, and that the appointee is enabled by public acquiescence to act: the appointment being without authority of law, the appointee is a mere usurper. The subject is very carefully considered in State v. Carroll, 38 Conn., 449, 471; S. C., 9 Am. Rep., 409, where the authorities are reviewed at length. The conclusions are summarized by Butler, Ch. J., as follows: "An officer de facto is one whose acts, though not those of a lawful officer, the law upon principles of policy and justice will hold valid, so far as they involve the interests of the public and of third persons, where the duties of the office were exercised: 1. Without a known appointment or election, but under such circumstances of reputatation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. 2. Under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like. 3. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, by reason of some defect or irregularity in its exercise; such ineligibility, want of power or defect being unknown to the public. 4. Under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such." In Commonwealth v. McCombs, 56 Pa. St., 436, substantially the same conclusion was reached. So it was also in Ex parte Strang, 21 Ohio St., 610, where the legislature, in disregard of a requirement of the constitution, had made an appointment. The following cases, the most of which are referred to in State v. Carroll, support the same views: O'Brian v. Knivan, Cro. Jac., 552; Harris v. Jays, Cro. Eliz., 699; Parker v. Kett, 1 Ld. Raym., 658; Fowler v. Beebe, 9 Mass., 231; Taylor v. Skrine, 2 Brev., 516; Wilcox v. Smith, 5 Wend., 231; Parker v. Baker,

Usurpers. It is possible also that one may attempt to perform the duties of an office, who neither is chosen to do so, pursuant to law, nor supported by the public acquiescence. Such a person cannot acquire the reputation of being the officer he assumes to be; he is a mere usurper, and his acts are wholly void for all purposes. No one is under obligation to recognize his claim to the office, and whoever does so must take upon. himself. the consequences. It is of high importance that the encouragement of such claims should not be allowed to bring disorder and insecurity into public affairs.1

Questioning title of officer de facto. The case of an officer de facto is different. To deny validity to his acts would lead to insecurity in both public and private affairs. It would compel those having occasion to transact business with a public officer, before they could put faith in his official acts, to go into a careful examination of all the evidences of his title, and of the provisions of law bearing upon them, in order to determine whether the assumption of official character is warranted by law, and is supported by a compliance with the necessary formalities. "It would constitute every citizen a judge of official titles. He must look to the constitution to see that the officer was eligible to an election or appointment; to the statute to ascertain when, where and how the election or appointment is

8 Paige, 428; People v. Kane, 23 Wend., 414; People v. White, 24 Wend., 520; Burke v. Elliott, 4 Ired., 355; Gilliam v. Reddick, 4 Ired., 368; Brown v. Lunt, 37 Me., 423, 428; State v. Bloom, 17 Wis., 521; People v. Bangs, 24 Ill., 184; Clark v. Commonwealth, 29 Pa. St., 129; Mallett v. Uncle Sam Co., 1 Nev., 188; Kimball v. Alcorn, 45 Miss., 151; Cocke v. Halsey, 16 Pet., 71; Gibb v. Washington, 1 McAll., 430; Vaccari v. Maxwell, 3 Blatch., 368; State v. Duryea, 40 N. J., 266; Tyler v. Flanders, 57 N. H., 618; Odiorne v. Rand, 59 N. H., 504; Wolfe v. Murphy, 60 Miss., 1; Yorty v. Paine, 62 Wis., 154.

1 See Plymouth v. Painter, 17 Conn., 585, 593; Peck v. Holcombe, 3 Port., 329; Keeler v. Newbern, 1 Phil., N. C., 505; Munson v. Minor, 53 Ill., 594. In Birch v. Fisher, 13 S. & R., 208, an assessment made by persons not shown to have been either elected or sworn, held to be by 66 mere intruders who came in without color of authority." An officer who holds over in good faith, though without warrant of law, is not a usurper. Kreidler v. State, 24 Ohio St., 22. Compare State v. McFarland, 25 La. An., 547. To support one's acts as those of an officer de facto, they must have been done under color of an office whose duties have been discharged by him. Bailey v. Fisher, 38 Iowa, 229.