Bonorable W. P, Weldrop, pags 15


    the attsaptsd creation of P 8upUior Court and the trans-
    fer thereto of the furlsdiotiou ot Ohs sounty oourt did
    not moot the ui8tonee or the county oourt a8 a da jxro
    0rri00, Ir Ohadboumr*8 OaWOnro into and oontinusnoo in
    suoh 0fri08 meats all the rsquirsmsats  0r a de raoto or-
    rioar as derined by this 00wt in Ekes y. MsaOyom, 154
    W& 157, l&2 B. 1. 595, 46 L.R.A., N.S. 796, where it
         * ‘A penon may be a 68 faObo ottiosr and hate no
    real'tltleat all to the laos he assumes to hare a right
    to. Ir one is in pomers f:on or an orrioe and performs
    ito duties and entera by right or suoh olaim of right  as
    not to ireolasaable as a usurpat, or has bsen In undls-
    turbed possession so long as to bs equiyalentto an entry
    under olaim or right, and still olaims In good faith to
    be entitled to the orrioe, and all surroundingsafford
    an apperranoeof a ds fore ofrioial status, he is a8 a
    general rule de taoto what he olaim to be. WhaB glres
    him the status is oolor or authorit    - oolor or title
    is not essential,stristlyspeaking.*
         ". . . Where an off108 exists under tho law it
    mattera not how ths appolntrpaator the inoumbent is'
    made, so rar as the ya.Udity of hi8 aots are oonoerned.
    It is enough that he is olothed with the insignia ot ths
    orrioe, and sxeroiaes its peers and rusotlons.w
              The oourt rurther say81
          The reason ror the rule that  aots done by .&de taoto
    orriau in a de jure art109 are ra2id rests upon gr0tttka8
    or pub110 polloy. Ii the eoatrrry wsrs held orrioial aotr
    or the grayest ohanoter would,havs to be beolarhU raid by
    reason or s deteot in the title or the inoumbent to the
    orrfos. Fmperty and pemonal rights would b rubjsst to
    oonstant hanard8, arising, not out of any infirrity in the
    prooedure settling them but out of a defect inkthe title
    or tho orriolal exueLing the tuaotlons et the orfioe.-
    a Ueteat not 1% any wy lo.ogimlly  aosneotedwith the proper
    exercise or the assumsd Motions.     iienoe,b+au c da jIirs
    orriieeand a be raoto lnoumbent thsmer, them is valid
    lxerelse 0r the powsrs 0r the orrioe.~
         "(2) The raot that Jud(o tbadbourne aeted under thw
    name or Judge or the Ougorlor oomrt instead of Judge oi
    the County Court 18 immaterial. da so aotw      was unaor
    the salor of a r&&t oonierred bl the rob6 aat sreating
    the Superior Oourt.  Under ruoh eelor 0r right hs a88ma
    t0,ad did in raot, exsroiso al1 the pmrers ana rPniItiOn8
Eononbls      1.    P. walarop, pade l6



        0r the aounty court.      That he did not aammo the naas
        of the otrloe was due to the faot that he supposed the
        jurisdiotlon or tho aouxty aourt was 68an8rerreti      to the
        Superior Court and that     he wet8authorlaedto trawaot
        the buslaess of the rower      oourt under the title ot
        the latter. There neter was uw doubt in the minds or
        either parties, sounsel seurt, or tho pub118 that
        Judge ohaabott8-ti0 in as&     upon Platter8 uniter the juri8-
        diofion of the Oounty Oourt did so to the exolusion 0;8
        the Oounty Judge. That is tihatthe told law 8aid he
        should do, and that    is what ha UIQ. Ea~lng taken the
        sub8tanee or the oitiee, he ir n0ne the less a de raoto.
        judge thou& he did not assums its title. The inherent
        oharaoter       or   an   a06   18   not   de8trOTSd.   by   s mere   change
        in the ioa  thersor; n0r is suoh oharecter   ohanged br
        glvlng it a new name. The tuxotious that below to an
        ottioe, aad not it8 ame, dttemine its     idontlty. See
        Kirker Y. ~inoiunatl, b8 Ohio 507, P7 19, IL @U.*

              The 8uprsmsOourt               0r wf8oousin alro said in thi8
easer

              "(3) That therm wa8~in li8teno ea de fare otrirer
        ot Ohe Oouat3 Oourt at the time 3ud3e Ohadbourne was de
        r8OtO Judge thereof do08 not srreot the Yalidit~ or hi8
        arts a8 a de raoto Judge.  He haying ou8ted the de Jura
        jut&e and exeroised the tunatloa8 ot tho oitioe.

              “.    l   .



             “. . , plo in the present ease Judge Ohadbourne held
        under solor or title, had osmpleto pos8O8sion oi tho
        otrioo, mm,   reoords,  papers of ThorOount3 aourt, an".
        existing ao lure orrioe, and exeroiwa la Nl     the pavers
        and dutiea thoreor. For that rea808 he wa8 a de taoto
        judge 0r a de jure oourt, aud his lO68 ars Yilid a8 to
        third partlss."
           The ease just quoted is 80 near13 in point with the
ratter under ai8OUSSiOn that ws retxaia trot  further diSOW8143
the point.
HonorableW. P. Waldrop, page 17


          Insomuoh as Mr. Elliot ouppoaed hlmseli to be
NX4ninal District Attorney”,  he took no oath of orrioe as
county Attorney end filed no bond as mush otfioer. Would
these iaots militate against his being in the 8tatu8 of
de faoto County Attorney?
         This question is authoritativelyanswered by
deolalons or the appellate oourte or Taxes.
          In the oaae of aolller v. State, 287 8. w. 1095,
the deputy sherirr ln whose oharge the Jury was plaoed had
aads no bond as euoh ofrloer. Upon appeal our Oourt ot
Orlmlaal Appeals In disou8oing the liratter
                                          said:
          *Appellantoontonds th a tlrrsr was ossualttedin
    that the jury was plaoed in sharge of an otfloer other
    than a duly authorized oliloer or the law while they
    wore oonsldorlngtheir verdiot. This question has given
    us no little oonoern, and were it OAe 0r rim   fmp8ssion
    with us the rritsr would not hesitate to hold that DeYir,
    the pa& who wss plaoed in oharge oi the jury by the
    sherirr, was not a de raoto or de jure ortioer; but it
    seems .$&atthe ovenuheUulngweight or authority in thi8
    and other states 18 to the erroot that Dayi was a de
    raoto otiloerb and we do not reel justfiled in deolding
    this question a,galnstthe great weight ot authorityr The
    ldentloal question was deolded oontrary ts appellant%
    oontentisnby bhs Court or Qlvil Appeals in the ease or
    Brsaoh Y. Garth, 50 8. W. 59b. See also Williams Yb State,
    247 9. If.263."
         The 00th   oontiymar

         me   reoorb diMlo8er that tho sheritt  tertitiod on
    hearing of rotion for a new trial that DaYis, the party
    who had ohugs of the jury, was not under any hind Or a
    bond so rar as the sherltr knew, but he had been Mtily
    under him ae deputy sheriti, and he had reqwdccr4Dar18
    to help him ror that term of the oourt; that h!Mhad helpsd
    him before, awl that he had been eating as deputy sherlfr
    or the oounty ior about a msnthi that he had 8umward wit-
    nesse8 prior to this time, some of them about three or
    rour week8 b&ore that, and that he had periormed other
    duties la line with the duties or deputy shsrift tor about
Eoaorable W. P. mlbrop,             page 18



          a month. In the authoritlerr.will be found Mber Wo title
          ot de rCuto oftloem in Volubq 2, pag6 1845, sr 9wds k
          Phrue8n, to the errs06 that, the raot8 aber6 rtabd would
          bring Ds~ls within the oato@bw of a de taoto olfiesr.*

                   Other Tsu8   aOOi8iOM      @r6 tord to the 8uU oftut,
but ror the sake oi br*ritr we shall               refrain ironi quotin(Lthe8
here.

          The !hIW Oa898 Ot Aulaaier Ye f&YUW~,     1 -1. 653fi
Blewstt Y. RiohaN     Independent ELoWol Di8tZ'lOt. Oom. Ap .)
240 8. w. 5295 odu t. SiAtm Iadopendent Sob01 9 I 86TiOt    f@OR.
App.) 234 S. W. 1.000 -iA    Y. @rmdYieu ~BdSpdOkt      Sohool
Dirtriot, 266 8. w. 407, (error retwed);  and Br&8b Y. Oarth,
50 8. W. 594, all hold, a8 ws uad8ntantl thsa, that  it  is not
neoewaq that a boa6 be &en     in order to oonstStote one a de
taoto otiloer.
           Buawo  t&o Qerri8slonem oourt ot way8on (lOtin6~
during all the tiu oovored by yeur puertioa mi8takw      8Up-
posed the 0rrf0e 0r Oount~ Attwnof to be nonui866a8 la that
oouuty, said oowt aid aot rix say ralary tar thr Oovnty At-
torne~. What thea shall bo t&e mee8ux-e br whioh w  ba deter-
and t&e aawnt 0r 8+ly aw                    ur. zuiot a8 a6 raot6 osprrli7
Atteraey or Oray8oa Ootratywhile                  ho 8\lpposdl   himelt to be
aOriminal          Di8triot Attornrf*?

                   In our opinion loo. O-29U$,        written bl HoWable    Ooio
Spur end R. W. ?e8hilll               Assi8tti~       Attorney8 @sneril, it wss
held on      the     au$harity Ot &ens      fAri8pmnIeAoe, ?ok        34, jm69 $25,
that:

               *The oowt may not sew the otrloer any oom nr&lon
          whatever, an& an or&r attmpting to do 86 is to r a. Until
          the rate has been fired by the o08111881oner8*
                                                       oourt, the
          offloer is lntltle~dto the msrimm rate 8pedfisb in the
          8tatAte. . . .*

           wo are Sherefore of the opinion that Mr. ;Glllot*o
oompsnsatloa a8 OOUA$~ Attorney tOr the period. MatlOaea  in
hour question will  bo tho aoximum awuut that oatid hwr b6en
spwitlsd by the tJo~~i8rionor13 Qosrt under the 8taOute than
lpplioable to oomtie8 et             the   8811 poptiaOlonbraotita8 t3rwfJon
OOun6~.
                              19
fionorublo%. P. waldrop, parl;e


          In oomeatloa with the forogoinc;   statemmt 8~ tha
tollouiag aase8: Hill County f. 8aalm, 134 S;.'Q.267; Ba8trep
County v. iicarn,70 Tax. 563, 6 5. W. 302; 3axt.r v. Rwk
County, 11 3. 'N‘.
                 (ad) 6&U; tfearorv. Wood Coumq 275 8. R.
719; b-n     County f. Oo8to8,  273 8. W. 87&i 34th V. VI88
               X. 705; tiont~mery COlUtt7 t. %llOl,  169 6. W.

          h a8 taoto ottiow would br lntltlod to ro8elro.tha
ma malompwuatlon aa e de juro ottloer In the amno poaition.~
(8.0 City of Homfoa T. Albor8, 73 3. 81.lO(lC~LBr 1. Browa,        ~'
191 6. 'F.379)
           You 8r* tbormtore 84rlr8d tht   lt Mr. Elliot aak88
say 818ir for oorapon8~tion  tot blr 88nfOM 48 do t*oto   COua87
Attorney ot Gnyron~ ilountytor the perlo& mmtlono4 in our
lott8r, he will be lntlOled   to bo pa16 rau In Irooordoaeevlth,
and aeaaurod by, the priaoiplu 8trtad in this opinion.




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