that the presumption arising from the acting as surrogate only stands until the contrary is proved, and after reviewing the facts, decided that the allegation that Dr. Parsons, who acted as surrogate, had authority to administer the oath was negatived, and the defendant was acquitted. There is a striking analogy between the case cited and the one at bar, for in both of them the question related to the validity of the appointment; and if it was illegal in the one case the application of the same principle would render it so equally in the other. The case referred to is a nisi prius decision, but it has been cited in the elementary books approvingly, as well as in several reported cases in the courts. In Wilcox v. Smith,1 a constable was sued for trespass and justified under an execution issued by a justice of the peace, which was regular upon its face; and it was held that, showing that the officer issuing the process was an officer de facto is not merely prima facie evidence that he is an officer de jure but was conclusive for the protection of a ministerial officer required to execute such process. In commenting upon the case of Rex v. Verelst,2 it is said in the opinion: "Here the act of the officer was made the foundation of an affirmative criminal proceeding, instead or being used as a defence or protection; and it may well be that his strict legal title to his office under such circumstances may be inquired into ;3 but if an officer had been prosecuted as a trespasser for an act done under a precept or warrant issued by the surrogate, I apprehend an inquiry into the title of the surrogate to his office, after an unquestioned exercise of its powers for twenty years would not have been permitted." In 2 Hawkins' Pleas of the Crown,4 it is laid down that: "It seemeth clear that no oath whatsoever, taken before a person acting merely in a private capacity or before those who take upon them to administer oaths of a public nature without legal authority for their so doing, or before those who are legally authorized to administer some kinds of oaths, but not those which happen to be before them or even before those who take upon them to administer justice by virtue of an authority seemingly colorable, but in truth unwarranted and merely void, can ever amount to perjuries in the eye of the law, because they are of no manner of force, but are altogether idle." It is also said in the same section, by the same author that "no false oath in an affidavit, made before persons falsely pretending to be authorized by a court of justice. to take affidavits in relation to matters depending before such court, can properly be called perjury, because no affidavit is in any way regarded unless it be made before persons legally intrusted with power to take it," etc. 15 Wend. 231, 235. 2 supra. 31 Hawk. P. C., ch. 69, sec. 4. In Archbold's Criminal Pleading, it is stated, that the oath must be taken before a competent jurisdiction. For if it appear to have been taken before a person who had no lawful authority to administer it, or who had no jurisdiction of the cause 3 the defendant must be acquitted, "and numerous authorities are cited to sustain this position." It follows as a logical result of the authorities cited, that proof may be introduced for the purpose of showing a want of authority in the officer taking the oath. In Morrell v. People,4 an indictment was found for perjury before the clerk of the Circuit Court. One of the grounds of error alleged was that there was no proof that the person who administered the oath was clerk as alleged. It was held that it was requisite that it should be proved that the person before whom the oath was taken, was authorized by law to administer it; that proof that the person who admintered the oath habitually acted in the capacity of a particular officer is perhaps only prima facie evidence of the fact; but until rebutted, it was sufficient, without producing his appointment or commission. This case therefore sustains the doctrine that the presumption from acting may be rebutted by proof to the contrary, citing Rex v. Verelst 5 and other authorities. The principle stated is elementary and I am unable to discover how it can be disregarded without violating a well established legal rule. It is said that the notary was an officer de jure and having been regularly appointed by the proper authority, who must be presumed to have passed upon the question of his residence, it is therefore res adjudicata. Conceding that as a general rule the Governor may appoint an alien, or a convicted felon, or a minor, or other person, who is disqualified from holding a civil office to an official position, and that inquiry can not be made as to the title to the office collaterally, there is no reason why such a doctrine should prevail where the jurisdiction of the officer and his power to administer an oath, is a subject of controversy and dispute and a contest is made on that point upon the trial on an indictment for perjury. As we have seen the power, the authority and the right of the officer to administer the oath is the very foundation of the charge and the basis upon which the offense rests and hence is a matter which must be lawfully proved. Without testimony to establish this important fact, the indictment can not be upheld and the whole charge must fail; and where such evidence is introduced the right to contradict it is clear and unequivocal and can not be controverted by presumptions that the appointing power has performed its duty. The case of Rex v. Ver elst,1 which is fully sustained by other authorities, is directly in point on this question and we think the doctrine there laid down is controlling. In the conclusion at which I have arrived, in reference to the question last discussed, it is not intended to decide that where a public officer holds an office under a valid appointment or election, a subsequent disability can be made the subject of inquiry in any other manner than by a direct proceeding for that purpose, or that his acts as an officer de facto are not valid until he is lawfully declared to be disqualified. Such a case has no analogy to one where there never was any power to act, and an entire want of authority from the commencement. There is also another ground upon which I think that the evidence offered was admissible. The evidence introduced by the prosecution was very slight and by no means conclusive. No commission was introduced by the prosecution to show Mellick's appointment and only a single witness testified that he had been in the habit of acting for some years. The book introduced from the county clerk's office did not show that he had qualified by taking the oath of office; nor was such oath produced. No evidence of the genuiness of his signature in the book was given nor was his handwriting distinctly proven. The evidence at most, was prima facie; and to rebut the presumption arising from the same, and to show the improbability of his having been appointed to such an office, it was I think, competent to prove that he was actually a non-resident, and was entirely disqualified from holding any such office. It was at least an open question as to the weight to be given to the testimony introduced by the prosecution, and the evidence offered should have been reeeived as bearing upon that branch of the case. There are numerous other questions in the error book of a serions character. As, however, the conviction was erroneous upon the grounds stated, it is not important to consider them; and for the reasons already given the conviction and judgment must be reversed and a new trial granted. EARL, J. I concur in the result reached by Judge MILLER and favor a reversal of the judgment upon three grounds. 1. It was necessary for the People to show that the oath alleged to be false was taken before either a de jure or a de facto notary. The only proof given was that Mellick, who administered the oath had acted as a notary for some years. This was prima facie evidence that he was a de jure notary. The defendant had a right to meet this prima facie case by any evidence tending to show that he was not de jure a notary, 1 supra. and the evidence offered to show that Mellick, at the time of his alleged appointment, and subsequently to the time he administered the oath, was a resident of New Jersey, had such tendency. If true, it would have shown that he was a person who could not have been legally appointed and hence would have destroyed the presumption that he had actually been appointed. There could be no presumption that the Governor appointed one to the office of notary, whom he had no legal right to appoint. If this evidence had therefore been received and uncontradicted it would have been necessary then for the People to show that Mellick was a notary de facto. This could not have been shown by evidence that he had merely acted as such. The de facto character of officers is never established by simple proof that they have acted as such. In addition to such proof it must be shown that they had color of office, or some resemblance of competent authority. This is generally shown by proof of some election, appointment, formal, but irregular or defective, under which the officer has assumed to act. I am not, however, prepared to deny, that any officer may have sufficient color, in some cases, without any appointment or election whatever; as when he takes possession of the public building or room where the duties are to be discharged, and has possession of the public property pertaining to the offices, and is thus clothed with all the indicia of official possession, and has for a considerable time, with the acquiescence of the public and without dispute, openly, and notoriously exercised the duties of the office. Such a case could rarely, if ever, occur in this country; but if it should occur it might give color of office. To illustrate more clearly my meaning: if one should take possession of a county clerk's office, claiming to be clerk, and should then act as clerk for a considerable time, by the general acquiescence of the public, there being no one else to exercise the duties of the office, he might have sufficient color to make him clerk de fucto. But a notary having no public office, clothed with none of the symbols or outward tokens of official position, being one of thousands, who may any where in the same county, exercise the duties of the same office, can not get color of office by simply acting from time to time as he might have opportunity. He can get color of office only by an appointment, emanating from the appointing power, or from some power having at least a colorable right to make the appointment. If the Governor should commission him without confirmation by the Senate, or while he was a non-resident, and he should then act, he would be in office under color of appointment, and thus become a notary de facto. The the authorities in this State.1 1 People v. Collins, 7 Johns. 549; Wilcox v. Smith, 5 Wend. 231; Ring v. Grout, 7 Id. 341; People v. White, 24 Id. 520; Hamlin v. 2 DEFENCES. views are abundantly sustained by 23 Dingman, 5 Lans. 61; Peoplev. Cook, 14 Barb. 259; s. c. 8 N. Y. 67. There was, therefore, error in the exclusion of the evidence as to the residence of the notary. (Omitting other points.) HAND, J. I agree in the result of Judge Miller's opinion that there should be reversal of conviction and new trial in this case. I can not, however, concur in all the grounds stated by him; and as the fate of any new trial may be dependent upon some of them, it is proper that the views of the court should be expressed upon these questions. (Omitting other points.) Nor, 3. I also agree that the evidence as to the notary's residence was, under the circumstances, improperly excluded. I am not prepared to assent to the doctrine of the opinion that perjury can only be committed before an officer de jure, and that on the trial of an indictment for that crime, the title of such officer can always be attacked. indeed, am I prepared now to say that if in the present case the commission of the notary from the proper appointing power had been shown, the prisoner could have raised such a question as non-residence. I am inclined to think that in such a contingency, the question of residence being often a very nice one, the validity of appointment could not thus be attacked. But here there was hardly any proof that the party who took the affidavit was a notary at all. The list in the clerk's office proved absolutely nothing, and, indeed, I do not see how it was admissible. The mere fact that he assumed to act as a notary was all the proof really given of his official position. It is doubtful to my mind whether this was any proof of even color of office. But if it be conceded that it tended in some degree to show a de facto officer, or to raise a presumption or inference that he had been appointed, I think proof that the person was a non-resident, and therefore incapable of holding that position, was admissible to rebut any such presumption that he had ever been appointed and was anything but a mere intruder. Of course, if legal proof of any sort of an appointment had been made, there would be no longer any room for presumption upon this point, and nothing of that sort which could be rebutted; but not so as the case now stands. CHURCH, J., Concurs with MILLER, J., as to rejection of evidence of non-residence of notary. FOLGER, J., concurs with HAND, J., as to notary. RAPALLO, J., concurs with EARL, J., as to notary. Judgment reversed. |