judicial decision favors the doctrine that the candidate must be eligible at the date of his election.38

APPOINTMENT AND ELECTION.

81. The mode of selecting municipal officers is prescribed in the charter or the general law, and varies greatly in different states and in the several municipalities of the same state.

The mayor and members of the governing body are elected by the people; 39 but the treasurer, comptroller, marshal, attorney, and members of boards are chosen in some corporations by the people, and in others by the council.40 Subordinate officers are generally chosen by the council or appointed by the mayor; but the power of appointment is not here, as in England, an inherent executive function. When, however,

38 State ex rel. Attorney General v. Page, 140 Mo. 501, 41 S. W. 963; State ex rel. Deering v. Berkeley, 140 Mo. 184, 41 S. W. 732; People v. Leonard, 73 Cal. 230, 14 Pac. 853; Drew v. Rogers (Cal.) 34 Pac. 1081; State v. Williams, 99 Mo. 291, 12 S. W. 905; Hill v. Territory, 2 Wash. T. 147, 7 Pac. 63; State v. Moores, 52 Neb. 770, 73 N. W. 299; Carson v. McPhetridge, 15 Ind. 327; Taylor v. Sullivan, 45 Minn. 309, 47 N. W. 802, 11 L. R. A. 272, 22 Am. St. Rep. 729.

39 Elliott, Mun. Corp. § 259; City of Monroe v. Hoffman, 29 La. Ann. 651, 29 Am. Rep. 345.

40 STATE v. CURRY, 134 Ind. 133, 33 N. E. 685; Ball v. Fagg, 67 Mo. 481; State ex rel. Kane v. Johnson, 123 Mo. 43, 27 S. W. 399; Commonwealth v. Crogan, 7 Kulp (Pa.) 23; Sheridan v. Colvin, 78 Ill. 237; Greer v. Asheville, 114 N. C. 678, 19 S. E. 635; People v. Albertson, 55 N. Y. 50; Grant v. Alpena, 107 Mich. 335, 65 N. W. 230; Whipple v. Henderson, 13 Utah, 484, 45 Pac. 274; Armstrong v. Whitehead, 67 N. J. Law, 405, 51 Atl. 472. The legislature may by statute confer upon the Governor the power to appoint members of the board of fire and police commissioners of cities of the metropolitan class. State v. Broatch (Neb.) 94 N. W. 1016.

41 Speed v. Detroit, 98 Mich. 360, 57 N. W. 406, 22 L. R. A. 842, 39 Am. St. Rep. 555; People v. Freeman, 80 Cal. 233, 22 Pac. 173,

this power of appointment is conferred upon him, confirmation by the common council is not necessary unless expressly required; 2 but if required, it is essential to a valid appointment. 48 In elections by the common council the rule of majority obtains,** but in popular elections a plurality of votes is sufficient.45

Condition Precedent.

47

Compliance with conditions precedent is essential to the lawful taking and holding of an office.** At common law a citizen was obliged to accept public office under penalty of indictment for refusal; 7 but in America public office is considered rather a distinction to be coveted than a burden to be borne. An office, however, must be accepted; 48 but formal acceptance is not necessary; 49 it may be implied from con

13 Am. St. Rep. 122; Fox v. McDonald, 101 Ala. 51, 13 South. 416, 21 L. R. A. 529, 46 Am. St. Rep. 98.

42 State v. Doherty, 16 Wash. 382, 47 Pac. 958, 58 Am. St. Rep. 39. 43 Kempster v. Milwaukee, 97 Wis. 343, 72 N. W. 743.

44 LAWRENCE v. INGERSOLL, 88 Tenn. 52, 12 S. W. 422, 6 L. R. A. 308, 17 Am. St. Rep. 870; Wheeler v. Commonwealth, 98 Ky. 59, 32 S. W. 259; MILLS v. GLEASON, 11 Wis. 470, 78 Am. Dec. 721; Cadmus v. Farr, 47 N. J. Law, 208.

45 Price v. Baker, 41 Ind. 572, 13 Am. Rep. 346; Brown v. Blake, 46 Conn. 549; Gulick v. New, 14 Ind. 93, 77 Am. Dec. 49. But see State v. Wilmington, 3 Har. (Del.) 294.

State v. Eshelby, Y. 374; Vaughan

46 State v. Wadhams, 64 Minn. 318, 67 N. W. 64; 2 Ohio Cir. Ct. R. 468; People v. McKinney, 52 N. v. Johnson, 77 Va. 300; Johnson v. Mann, 77 Va. 265.

47 Edwards v. United States, 103 U. S. 471, 26 L. Ed. 314. 48 Yet the common law is still recognized in the following American cases: City of Waycross v. Youmans, 85 Ga. 708, 11 S. E. 865; United States v. Wright, 1 McLean, 509, Fed. Cas. No. 16,775; State ex rel. Van Buskirk v. Boecker, 56 Mo. 17; State v. Clayton, 27 Kan. 442, 41 Am. Rep. 418; Hoke v. Henderson, 15 N. C. 1, 25 Am. Dec. 677; London v. Headen, 76 N. C. 72; Haywood v. Wheeler, 11 Johns. 432; Edwards v. United States, supra. See, also, Cloutman v. Pike, 7 N. H. 209.

49 Smith v. Moore, 90 Ind. 294; Coyne v. Rennie, 97 Cal. 590, 32 Pac. 578.

duct.50 Generally an oath of office, and oftentimes a bond, is a condition precedent to entering upon the duties thereof; and one cannot become an officer de jure until he has complied with these conditions.51 But it has been held that failure to comply does not ipso facto create a vacancy, nor work a forfeiture of the right,52 but that the officer may, after taking the office, comply with these conditions at any time before proceedings are instituted for his removal.53

FIDUCIARY RELATIONS.

82. All officers of a municipal corporation, including aldermen, occupy a fiduciary relation towards the public, and must act solely with reference to the best interests of the community.

Like the Gospel, so the law declares that no man can serve two masters; therefore one who takes upon himself a public office must not use it for self-service.54 In all matters affecting the public his knowledge and skill are devoted to it, and

50 Johnson v. Wilson, 2 N. H. 202, 9 Am. Dec. 50; STATE EX REL. KUHLMAN v. ROST, 47 La. Ann. 53, 16 South. 776; Hartford Tp. v. Bennett, 10 Ohio St. 441.

51 People v. McKinney, 52 N. Y. 374; Thompson v. Nicholson, 12 Rob. (La.) 326; Davis v. Berger, 54 Mich. 652, 20 N. W. 629; Olney v. Pearce, 1 R. I. 292; Hayter v. Benner, 67 N. J. Law, 359, 52 Atl. 351; Town of Tumwater v. Hardt, 28 Wash. 684, 69 Pac. 378, 92 Am. St. Rep. 901; State ex rel. Hull v. Gray, 91 Mo. App. 438. But failure to take the prescribed oath will not prevent his becoming an officer de facto. Rosell v. Board, 68 N. J. Law, 498, 53 Atl. 398. 52 State v. Ruff, 4 Wash. 234, 29 Pac. 999, 16 L. R. A. 140; State v. Kraft, 20 Or. 28, 23 Pac. 663. Contra, Vaughan v. Johnson, 77 Va. 300..

53 Launtz v. People, 113 Ill. 137, 55 Am. Rep. 405; Board of Knox County Com'rs v. Johnson, 124 Ind. 145, 24 N. E. 148, 7 L. R. A. 684, 19 Am. St. Rep. 88; Holt Co. v. Scott, 53 Neb. 176, 73 N. W. 681, and cases cited.

54 Goodrich v. Waterville, 88 Me. 39, 33 Atl. 659; 1 Dill. Mun. Corp. § 444.

56

may not be used to the detriment of the corporation.55 So it
has been held that if an officer, whose duty it is to select a lot
for the use of the city, procure the purchase, though before-
hand by an agent, and sell the same at an advanced price to
the city, he must account to the city for the profit made there-
by. The agent also is liable if he participate knowingly in
the transaction."7 An officer may not contract with himself
on behalf of the city, for it requires two to make a valid con-
tract. 58
Nor can a member of a city board vote upon any con-
tract with the city in which he is personally interested;
59 but
it is generally ruled that holding a municipal office is no dis-
qualification to contracting with a municipality, provided it
is represented in the transaction by other officers.""

55 Nunemacher v. Louisville, 98 Ky. 334, 32 S. W. 1091.

56 Short v. Symmes, 150 Mass. 298, 23 N. E. 42, 15 Am. St. Rep. 204.

57 Short v. Symmes, supra.

58 City of Ft. Wayne v. Rosenthal, 75 Ind. 156, 39 Am. Rep. 127; Drake v. Elizabeth, 69 N. J. Law, 190, 54 Atl. 248; Santa Ana Water Co. v. San Buenaventura (C. C.) 65 Fed. 323; McElhinney v. Superior, 32 Neb. 744, 49 N. W. 705; Holderness v. Baker, 44 N. H. 414; Grand Island Gas Co. v. West, 28 Neb. 852, 45 N. W. 242.

59 Berlin Iron Bridge Co. v. San Antonio (C. C.) 62 Fed. 882; Foster v. Cape May, 60 N. J. Law, 78, 36 Atl. 1089; Jolly v. Railroad Co., 25 Pittsb. Leg. J. (Pa.) 259; 1 Dill. Mun. Corp. (6th Ed.) § 311.

60 McBride v. Grand Rapids, 47 Mich. 236, 10 N. W. 353; City of Niles v. Muzzy, 33 Mich. 61, 20 Am. Rep. 670; Board of Tippecanoe County Com'rs v. Mitchell, 131 Ind. 370, 30 N. E. 409, 15 L. R. A. 520; United States v. Brindle, 110 U. S. 688, 4 Sup. Ct. 180, 28 L. Ed. 286.

OFFICERS DE FACTO.

83. An officer de facto is one who, under claim of right or color of title, holds an office de jure, and performs the functions thereof with the acquiescence of the public.

62

A mere usurper or intruder is not an officer de facto. He lacks the color of title and the public reputation and acquies- · cence essential to a de facto officer. Nor can one be a de facto officer unless he is actually holding an office de jure. "Where no office legally exists, the pretended officer is merely an usurper, to whose acts no validity can be attached. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices, and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed, until in some regular mode prescribed by law their title is investigated and determined." es Their acts are therefore held valid on considerations of public policy and necessity, provided they are generally recognized by the public as

61 Keeler v. City of New Bern, 61 N. C. 505; Town of Plymouth v. Painter, 17 Conn. 585, 44 Am. Dec. 574.

One assuming to perform the duties incident to a public office without attempting to qualify is without color of title and an usurper. Creighton v. Commonwealth, 83 Ky. 147, 4 Am. St. Rep. 143. See, also, Hamlin v. Kassafer, 15 Or. 456, 15 Pac. 778, 3 Am. St. Rep. 176; Dabney v. Hudson, 68 Miss. 292, 8 South. 545, 24 Am. St. Rep. 276.

62 People v. Hecht, 105 Cal. 621, 38 Pac. 941, 27 L. R. A. 203, 45 Am. St. Rep. 96; Hawver v. Seldenridge, 2 W. Va. 274, 94 Am. Dec. 532; People v. Staton, 73 N. C. 546, 21 Am. Rep. 479.

63 NORTON v. SHELBY COUNTY, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178; Town of Decorah v. Bullis, 25 Iowa, 15; People v. White, 24 Wend. (N. Y.) 520; Kirker v. Cincinnati, 48 Ohio St. 507, 27 N. E. 898; Burt v. Railroad Co., 31 Minn. 472, 18 N. W. 285; Carleton v. People, 10 Mich. 250; Roche v. Jones, 87 Va. 484, 12 S. E. 965.