The Rutland Daily Globe

WHAT THE EFFECT WOULD BE.

We are asked, "What will be the effect if the late municipal judge should still attempt to exercise the functions of the office claiming a pretended election thereto by virtue of the vote cast at the annual village meeting?"

A sufficient answer to this question would be to repeat, what we said a few days ago, that no lawyer of recognized reputation and ability, or one who had the least regard for his own reputation or the interests of his client would be foolhardy enough to institute any proceedings in that court under the present circumstances; for, without the connivance—in fact, the actual assistance—of an attorney, the municipal court can do no business, except, perhaps, in the naturalization line. Some shrewd attorney, however, may, under section eight of the act establishing the court, advise his client to apply to the municipal court for an order directing the state's attorney to file an information against him so that he may be at once sentenced to the state prison, well knowing that in such an event a judge of the supreme court would discharge his client on habeas corpus. But, after all, there is no particular danger of that, as the state's attorney is too good a lawyer to be caught in this trap.

We judge, however, from the question being asked that our inquirers have reason to think that the late municipal judge proposes, if possible, to bull-doze it through, usurp the office, and claim to act by virtue of the pretended election of April 25—and the questions, therefore, perhaps, need a further answer. We, therefore, reply that any act done by him, as municipal judge, would be absolutely void. His process would afford no protection to an officer serving it; his certificate of naturalization would not entitle a foreigner to vote: his judgments would have no weight, and the executions issued thereon would have no effect to create either attachments on personal property, or liens on real estate. and moreover the officer attempting to serve his writs or enforce his executions would be a trespasser and liable at law as such.

There is no such person as judge of the municipal court of Rutland, and any one attempting to exercise the duties of the office is a pretender and usurper, and his pretended acts as such are absolutely void.

There is a very broad distinction between the acts of a pretended officer who has no title at all to the office and a de facto officer who has a valid election, but who for ineligibility or other causes cannot properly hold the office. But even in the case of a de facto officer, while his acts may be valid as to third persons and cannot be called in question in litigation to which he is not a party, yet he cannot justify his own acts by the claim that he was a de facto officer.

Thus, in the case reported in the 14th Vermont, where it was held that a postmaster although prohibited by the constitution from at the same time holding the office of justice of the peace was yet a de facto justice and his acts were valid as to third persons, yet it was further held that as between him and the party aggrieved his holding the office of justice of the peace under a valid election would afford no justification or excuse for his acts; and that he would be liable in an action of trespass for the value of property attached, or taken in execution, on process issued by him, and in an action for false imprisonment at the suit of any one who was arrested or committed to jail on similar process.

As we have said, however, he is not even a de facto judge, but whether he is or not, the same consequences, to a certain extent, would follow. In either event, he would be a trespasser every time he attempted, by process issued as a pretended judge, to enforce the collection of a debt or the penalty for the infraction of criminal laws. We do not believe the late judge is quite head strong enough to take the course which would result in his being chosen defendant in suits for trespass and false imprisonment.

We apprehend, however, that this unfounded claim to the judgeship is not made for the purpose, or with the expectation, of doing any business as judge. but solely with the intention of drawing that little three hundred dollars from the state treasury. But the auditor of accounts stands in the way of that; and we greatly fear that, unless there is a new election—if, indeed. it is competent to hold one—the three hundred dollars will remain in the treasury and count so much in the reduction of state expenses.

The people of Rutland are not over anxious to have a municipal court, but we cannot say as much relative to the anxiety of individuals to get the salary.