August 14, 2002
Dear Sir:
You have the following question: What is the effect of the votes on the part of two new
members of the city’s board of commissioners in a meeting of that board, where the two
commissioners had taken the oath of office, but where the oath was administered by a person
who did not have the authority to issue oaths for that purpose?
Under the facts you related to me, the new members of the board of commissioners were
de facto officers, and the votes they cast (and other acts they may have performed) during the
period between which they were administered the oath of office by a person who was not
authorized to administer oaths and at least the point at which that problem was brought to their
attention, were legal.
The facts are that: Two new members of the board were elected in the recent city election;
at a meeting of the board following their election, they were administered the oath of office by
the assistant city recorder, a city official who does not have the authority to issue oaths; following
the seating of the two new members at issue, the board appointed a mayor, and voted on several
other matters; the two commissioners at issue voted in the appointment of the mayor and in those
other matters. There is no question but that the board had the authority to vote on the
appointment of a mayor. The authority for that vote on the appointment derives from ' 3 of the
City Charter. Presumably, there is no issue over the authority of the board to vote on the other
matters.
Section 3 of the Municipal Charter, provides that, “Before entering upon the duties of
their offices, the commissioners shall take and subscribe an oath to faithfully perform their
duties.” In Tennessee, numerous persons are authorized to issue oaths in specific cases.
However, the general power to issue oaths is held by state judges (including some city
recorders), city judges, state court clerks, county clerks, and notaries public. [Tennessee Code
Annotated, '' 16-1-102, 16-18-301, 18-1-108, 8-16-302]
It is said in Heard v. Elliot, 116 Tenn. 150 (1905), that:
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 third
persons, where the duties of the office were exercised, first,
without a known appointment or election, but under such
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Page 2
circumstances of reputation or acquiescence as was calculated to
induce people, without injury, to submit to or involve his action,
supposing him to be the officer he assumed to be; second, under
color of a known and valid appointment or election, but where the
officer had failed to perform some precedent requirement or
condition, as to take an oath, give a bond, or the like; third, 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, or by reason of some defect or
irregularity in its exercise; such ineligibility, want of power, or
defect being unknown to the public; forth, under color of an
election or appointment by or pursuant to a public unconstitutional
law before the same is adjudged to be such. [At 156] [Emphasis is
mine.]
The significance of being an officer de facto, is that the acts of officers de factor are
generally valid. [See County Clubs, Inc. v. City of Knoxville, 395 S.W.2d 789 (1965); Butler v.
Cocke County, 671 S.W 847 (Tenn. Ct. App. 1984); Smith v. Landsden, 370 S.W.2d 557 (1963);
Inman v. Brock, 622 S.W.2d 36 (Tenn. 1981); Waters v. State ex rel Schmutzer, 583 S.W.2d 756
(Tenn. 1979); Weakley County Municipal Electrical System v. Vick, 309 S.W.2d 792 (1957).]
The two commissioners clearly held office “under color of a known and valid
appointment or election.” Their taking of seats before being administered an oath by a person
qualified to administer oaths created de facto officers of the second kind. The specific question
of whether a person who had not taken an oath prescribed by law was a de facto officer has been
an issue at least twice in Tennessee. In Kelley v. James Story, 53 Tenn. 202 (1871), a deputy
court clerk performed some duties without having taken the prescribed oath of office. Holding
that the deputy court clerk was a de facto officer, the Court pointed to Farmer & Merchant’s
Bank v. Chester, 25 Tenn. 458 (1848), and being “conclusive.” In that case, deputy court clerks
were authorized to take deed for probate. Rose, took a deed for probate, but he had not take the
oath of office for deputy court clerk. It was held that Rose was a clerk de facto. Pointing to yet
another case, the Court said:
Judge Wright says in the case of Venable v. Curd, 2 Head, 586,
says: “No principle is better settled that the acts of an officer de
facto are valid when they concern the public or the right of third
persons who have an interest in the act done, and the rule has been
adopted to prevent a failure of justice.” The rule is different when
he acts for his own benefit, but when strangers or the public are
concerned, who are presumed to be ignorant of the defect of title in
the supposed officer, his act is always held good.
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Here the party was publically acting as clerk in the office, the
public had no notice of the failure to take the oath of office, and
every reason applies to favor the validity of the act, to be found in
any case in which the rule has been recognized. [At 206]
[Emphasis is mine.]
Country Clubs, Inc. v. City of Knoxville, 395 S.W.2d 789 (1965), although it does not
deal with the failure of a public officer to take an oath prescribed by law, is also instructive on
the law of de facto offices where the officer at issue has been validly elected. There the plaintiff
sought to have the office of Mayor of the City of Knoxville declared vacant because Mayor
Rogers had failed to file a record of his campaign expenses as required by the city’s charter. The
city’s charter provided that “...any elective officer, failing to comply within the requirements of
this act shall be disqualified from holding the office he seeks, or to which he has been elected.”
[At 790] One of the issues in that case was whether a city employee fired by Rogers had
standing to bring the suit as a taxpayer.
Holding that the answer was no, the Court reasoned that the fired city employee had
suffered no special injury because all of Roger’s acts were “at least the acts of a de factor
Mayor....” [At 793] Said the Court on that point:
It is enough to say that when a person is occupying a public office
and performs the duties of this office he is a “de facto officer,”
even though he may not have legally been appointed or elected to
the office where he holds apparent right under color of title. The
bill here shows that Rogers did receive the majority of votes and
was then sworn in as Mayor, but the basis of attacking him as a
usurper in this office is that he failed to comply with Section 92 of
the Charter....
The law validates the acts of “de facto” officers as to the public
and third persons on the ground, though not officers de jure, they
are in fact offices whose acts, public policy requires, should be
considered valid....[At 793] [Emphasis is mine.]
The two commissioners at issue in the City were validly elected; for that reason they held
their offices “by apparent right under color of title.” They had even took the oath of office as
required by ' 3 of the Municipal Charter. The only defect in the title to their offices is that they
took the oath from a person who was not qualified to issue oaths. Based on the above cases, it is
almost impossible to believe that they were not at least de facto officers with respect to the votes
they cast as a part of the majority of the board voting for the appointment of the mayor, and with
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respect to other votes they cast as members of the board.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/