Opinion
28874.
DECIDED JUNE 26, 1941.
Appeal from return of processioners; from Glascock superior court — Judge Perryman. November 1, 1940.
Casey Thigpen, M. C. Barwick, for plaintiff in error.
J. Roy McCracken, contra.
1. Where the ordinary who has the right under the law to appoint land processioners for a particular district in the county, makes an appointment of a processioner by approaching him on the street and stating to him that he is appointed land processioner for a named district, but never reduces the appointment to writing, or makes any entry of any kind on the minutes of the court, such appointment gives to the appointee apparent right or color of title to the office, and where such appointee assumes the office and discharges the duties thereof he is a de facto officer, and his acts in discharging such duties are legal, and can not be collaterally attacked in exceptions filed by a protestant to the return of the processioners.
2. The mere fact that the surveyor who ran the land lines for the processioners had, in a former proceeding between the same parties concerning the same land lines, refused to act as surveyor on the ground that one of the parties objected to his acting as surveyor did not establish a disqualification of the surveyor to act as surveyor in the present proceedings.
3. It was not error, as being an expression of opinion upon a fact in issue, for the judge to state in the charge that the alleged processioners were processioners.
DECIDED JUNE 26, 1941.
G. T. Chalker and J. W. Griffin, as processioners for the 1168th district G. M. Glascock County, Georgia, together with the county surveyor, ran and marked the land lines between the lands of E. O. Hadden and John L. Usry, and made their return according to law. The case came on for trial in the superior court on an issue formed by a protest filed to the return by Usry. Usry moved to dismiss the proceedings on the ground that one of the processioners who ran and marked the lines and signed the return, namely, J. W. Griffin, was not in fact a processioner of the 1168th district or any other district, and that as only one processioner had acted there was not a majority of the processioners of the district acting in the proceedings; and also that the county surveyor who ran the lines for the processioners was disqualified, and that upon these grounds the entire proceedings were void. The court overruled both motions to dismiss. After the introduction of evidence on the other grounds of the protest a verdict was found in favor of the return of the processioners. To the judgment overruling the protestant's motion for new trial he excepted.
In support of the protestant's motions to dismiss the following evidence was introduced: Testimony of the ordinary as follows: "Mr. N. J. Griffin was the land processioner for the 1168th district of Glascock County, Georgia, and soon after his death I met his son, J. W. Griffin, on the street, and then and there appointed him as a land processioner to succeed his father. It was an oral appointment. I never reduced the appointment to writing; never made any entry of any kind on the minutes of any court; in fact I made no record or memorandum whatever of this oral appointment. I suppose my court is a court of record, but I never made any written record of appointment of J. W. Griffin as a land processioner. I made this appointment just as I have appointed the other processioners, orally and without making any entry of any order on the minutes of my court." Testimony of the protestant, that he did not attend the running of any of the lines, as the parties giving him notice were not land processioners for the district or for any other district. A paper signed by D. J. May, county surveyor of Glascock County, during the pendency of a previous application between the same parties pertaining to the same land lines, in which May stated that he disqualified himself and would not act in the matter because John L. Usry had objected to his acting as surveyor. The court overruled the motions to dismiss, and the protestant excepted.
The court in the charge to the jury stated as follows: "The applicant applied to the processioners of the district in which the land is located to have a certain line run and marked anew between him and Mr. Usry. The processioners made their return to the ordinary, and Mr. Usry, who is known as the protestant in the case, has filed his objections." Error is assigned on this charge as being an expression of opinion on the facts at issue wherein the court stated that the persons referred to as running the land line were "processioners." Except as above indicated no error is insisted on.
1. A person occupying a public office and performing the duties thereof, although he may not have been legally appointed or elected to the office, yet, where he holds under an apparent right or under color of title, he is a de facto officer. Such apparent right or color of title will be found in the appointment of such officer to the office by the legally constituted authority to make such appointment, although such appointment may be irregular and not in accordance with the requirements of law. Hinton v. Lindsay, 20 Ga. 746. The law authorizes the ordinary, at the second term of court in every second year, to appoint three suitable persons in every militia district as processioners of land for that district, and provides that vacancies may be filled in the same manner at any time, and that where no processioner is appointed the ordinary shall appoint at any regular term on application of any landowner. Code, § 85-1604. Since the ordinary, under the law, has the right to appoint a processioner, an appointment by him, although not made at the term of court or otherwise as provided by law, orally made outside the court-house, while he is on the street, by addressing the appointee and telling him that he is appointed processioner for the designated district of the county, is sufficient to give the appointee who, pursuant to such appointment, assumes office and exercises the duties thereof, the apparent right or color of title to the office, and thereby to constitute him an officer de facto. The acts of an officer de facto in discharging the duties of the office are good and can not be collaterally attacked. Hinton v. Lindsay, supra. See further Pool v. Perdue, 44 Ga. 454 (2); Waller v. Perkins, 52 Ga. 233, 234; Hawkins v. The Intendant c. of Jonesboro, 63 Ga. 527; Tucker v. Roberts, 151 Ga. 753 ( 108 S.E. 222); 46 C. J. 1057.
Assuming, but without deciding, that the processioner whose appointment is attacked was not legally appointed, it appears that he had such apparent right and color of title to the office as would render him an officer de facto. Therefore, his acts in performing the duties of processioner were legal, and the court did not err in overruling the motion to dismiss the proceedings as being void on the ground that the return of the processioners was illegal and void in that it had been made by only two processioners one of whom was not a processioner in that his oral appointment had been illegal.
2. There was no merit in the motion to dismiss the proceedings on the ground that the surveyor appointed by the processioners to run the lines was disqualified, where the ground of disqualification urged was that, in a former proceeding concerning the land lines between the same parties, the same surveyor had refused to act, holding himself disqualified because one of the parties, who was the same party as the protestant in this present case, had objected to the surveyor acting in the matter. It does not appear that the surveyor was disqualified, and the court did not err in overruling the motion to dismiss the proceedings on the ground that the return of the processioners was void in that the surveyor who had run the land lines under the authority of the processioners was disqualified.
3. Although it was contended that one of the processioners was not a legally appointed processioner, yet since it appeared as a matter of law that he was at least a de facto processioner and that his acts were legal, the court in the charge to the jury did not express an opinion upon a fact in controversy in stating that the applicant had applied to "the processioners of the district," in which the land was located, and that "the processioners" had made their return to the ordinary.
The court did not err in overruling the motions to dismiss the proceedings, and in overruling the motion for new trial.
Judgment affirmed. Sutton and Felton, JJ., concur.