The opinion
The opinion of the Court was drawn up by
Appleton, J.
An officer de facto is one, who executes the duties of an office under some color of right, some pretence of title, either by election or appointment. The acts of an officer de facto are valid when they concern the public or the rights of third persons, and cannot be indirectly called in question in a suit to which such officer is not a party. His right can only be questioned iñ a suit against him. A mere usurper is one who acts without color of title, and whose acts are utterly void. Tucker v. Aiken, 7 N. H., 113.
Whether a person, exercising the office de facto, is an officer de jure, cannot be settled in proceedings between third parties. Morse v. Colley, 5 N. H., 222; Bean v. Thompson, 19 N. H., 290; People v. Collins, 5 Johns., 549 ; Norwich v. Yarrington, 20 Vermont, 473.
In People v. Dean, 3 Wend., 438 , it was held that, by the statutes of the State, a minor was incapable of holding a civil office; but that it was not for the officer appointed to administer the oath to determine whether the person presenting himself, was or was not, on account of age, capable of holding *81 the office to which he' was appointed. If the appointment was improvidently made, there is a legal mode by which it is to be declared void.
In the present case, Edgerly was commissioned and qualified to act as a justice of the peace. Whether the appointment was legal or not, cannot be called in question in a suit between these parties. He is an officer de facto, acting under color of an appointment in due form of law, and if, on account of his alleged minority, it was illegal, the invalidity of the appointment, or the personal incapacity of the appointee, can only be determined in a suit in which he can contest those questions. Brown v. Bunt, 31 Maine, 423. His official acts are valid as to third persons, till his commission has been judicially determined to be null and void. Such, too, was the rule of the Roman law, even when the appointment was of a slave. “ Acta apud, prcetorem gesta rata sunt, quamvis per errorem creatus sit, is qui inhabilis esset, puta servus.”
Exceptions overruled.
Tenney, C. J., and Cutting, May, Goodenow, and Davis, JJ., concurred.