have affected public interests or private rights, they must be treated as valid and lawful. The acts of a de facto corporation or officer under an unconstitutional law before its invalidity is challenged in or declared by the judicial department of the government cannot be avoided, as against the interests of the public or of third parties who have acted or, invested in good faith in reliance upon their validity, by any ex post facto declaration or decision that the law under which they acted was void. This proposition is not without the support of eminent authority. Indeed, we believe it is founded in reason, and sustained by the great current of the decisions of the courts that have considered it.

In Ashley v. Board, 16 U. S. App. 656, 666, 671, 8 C. C. A. 455, 461, and 60 Fed. 55, 61, the United States circuit court of appeals for the Sixth circuit held, in a learned and exhaustive opinion, that if a county was organized under an unconstitutional law, and if county bonds were issued and sold by county officers appointed or elected under such a law while they were recognized and treated as such by the inhabitants of the county and by the officials of the state, the invalidity of the law and of the organization would constitute no defense to an action to enforce the collection of the bonds.

In People v. Maynard, 15 Mich. 463, the supreme court of that state refused to inquire, even on a writ of quo warranto, whether a county organization under a law which was claimed to be unconstitutional was invalid, and said:

"In public affairs, where the people have organized themselves under color of law into the ordinary municipal bodies, and have gone on, year after year, raising taxes, making improvements, and exercising their usual franchises, their rights are properly regarded as depending quite as much on the acquiescence as on the regularity of their origin; and no ex post facto inquiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such general acquiescence, the corporate standing of the community can be no longer open to question."

In State v. City of Des Moines, 65 N. W. 818, 822, 824, the supreme court of Iowa refused to oust a de facto corporation organized under an unconstitutional law on the ground of acquiescence, although a direct proceeding by quo warranto was brought for the purpose. It declared that color of law was semblance of legal right, and that a corporation organized under an unconstitutional law was organized under color of law.

In State v. Rich, 20 Mo. 393, Rich and another were indicted in the circuit court of Stone county, and a motion was made to quash the indictment on the ground that the law establishing the county of Stone was unconstitutional, so that there was no de jure county and no de jure court. The circuit attorney admitted the unconstitutionality of the law, and the court granted the motion, and dismissed the defendant. The supreme court of Missouri reversed the judgment, and declared that "all such inquiries must be excluded whenever they come up collaterally, and the county, its courts and officers, must be treated as things existing in fact, the lawfulness of which cannot be questioned, unless in a direct proceeding for that purpose." To the same effect is City of St. Louis v. Shields, 62 Mo. 247, 252. The same rule is applicable to corporations de facto and officers

de facto; and Chief Justice Butler, in the clearest, most analytical, and most satisfactory discussion of this subject which we have found in the books, declares, in State v. Carroll, 38 Conn. 449, 471, 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: * * Fourth. Under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such." He cites six cases in which it was held that an officer acting under an unconstitutional law was acting under color of law, and was an officer de facto. They are Taylor v. Skrine, 3 Brev. 516; Cocke v. Halsey, 16 Pet. 71; People v. White, 24 Wend. 520; Carleton v. People, 10 Mich. 250; Clark v. Com., 29 Pa. St. 129; and Com. v. McCombs, 56 Pa. St. 436, in which Judge Strong (afterwards Mr. Justice Strong, of the supreme court) said: "An act of assembly, even if it be unconstitutional, is sufficient to give color of title, and an officer acting under it is an officer de facto." To the position sometimes urged that a law of doubtful constitutionality may give color of law and of title to those who act under it, but that one that is manifestly repugnant to the constitution and void cannot, Chief Justice Butler makes this admirable answer:

"The inference to be drawn from these assumptions necessarily is that a manifestly unconstitutional law is without any force whatever, and that whether manifestly unconstitutional or not, and whether to have the appearance and force of law or not, are questions for the private judgment of the citizen. If these assumptions were true, they would dispose of this case, but they are of novel impression, and fundamentally erroneous. Every law of the legislature, however repugnant to the constitution, has not only the appearance and semblance of authority, but the force of law. It cannot be questioned at the bar of private judgment, and, if thought unconstitutional, resisted, but must be received and obeyed, as to all intents and purposes law, until questioned in and set aside by the courts. This principle is essential to the very existence of order in society. It has never been questioned by any jurist to my knowledge. It was never questioned even by Mr. Calhoun and his disciples that an unconstitutional law of congress, manifestly and palpably unconstitutional, had the color and semblance of authority, and was obligatory upon the citizens of a state, as citizens of the United States, until it was nullified by an act of the state legislature, which they claimed might be done on the ground that the general government was the creature of a compact between the states, and its laws might therefore be so nullified by action of the state legislatures. Certainly, they never asserted that a legislative enactment of a state, having all the forms of law, had not the force of law to all intents and purposes as against the citizens of the state, however repugnant to the state constitution, until set aside by the courts. The doctrine that a law of doubtful constitutionality may be presumed to be constitutional until judicially decided otherwise, and that a law manifestly unconstitutional cannot be so presumed, has no existence as applicable to the citizen."

The conclusion we have reached is that the warrant issued for the scrip of Kearney township cannot be defeated on the ground that the law attaching Kearney county to Hamilton county was unconstitutional: (1) Because the validity of the organization of Kearney township cannot be questioned collaterally in this action; (2) because Kearney township was a de facto township, organized under color of

general laws of Kansas relating to townships, and not under the unconstitutional law which attached Kearney county to Hamilton county; and (3) because, even if it were organized under the unconstitutional law, that law, until it was challenged in or declared void by the judicial department of the government, was sufficient to confer color of legality upon the township; and it was still a de facto organization, whose acts and contracts are valid so far as they involve the interests of the public and of third persons who have relied upon them.

We have now disposed of all the questions presented by this record save one, and that is of minor importance. The trial court peremptorily instructed the jury that they could allow only $12 on a warrant for $788.88 issued to W. J. Price for services as a commissioner. There is nothing in the record to show that the services of this commissioner were not worth more than $12, and nothing by which the amount he is entitled to receive can be accurately determined. No provision of statute has been found which limits his compensation to the amount allowed, and our conclusion is that this instruction was unwarranted. The result of the whole matter is that the judgment below must be reversed, and the cause must be remanded to the court below, with directions to grant a new trial. It is so ordered.

MAURY'S TRUSTEE et al. v. FITZWATER et al.

(Circuit Court, D. West Virginia. August 6, 1898.)

1. VOID JUDGMENT - REVIVAL AGAINST HEIRS OF DECEASED PARTY — UNAUTHORIZED APPEARANCE BY ATTORNEY.

A man was made a party defendant by an amended declaration in ejectment, and an appearance by attorney was at the same time entered for him, though he was in fact dead. The case was afterwards revived against his heirs by consent of the attorney, who also waived process, and appeared for them, though without authority to appear for either the deceased or the heirs, neither of whom had any knowledge of the action. Held, that a judgment against the heirs was void. 2. SAME-PETITION TO VACATE-LACHES.

A court will not refuse to entertain a petition to vacate a void judgment because not filed until 11 years after the rendition of the judgment. where it was rendered against the petitioners as heirs, and they had no knowledge of its existence for several years.

3. REVIVAL-AUTHORITY OF ATTORNEY TO BIND HEIRS OF DECEASED DEFEND

ANT.

Where a defendant in ejectment has appeared by a duly-authorized attor ney, on his death his heirs will be bound by the action of such attorney in consenting to a revival, waiving process, and entering appearance in their behalf.

This was a hearing on a petition to vacate a judgment entered. herein in 1886 against the petitioners as heirs of Sela White and Andrew Claycomb.

Mollahon & McClintock, for petitioners.

James F. Brown and Eugene Massie, for defendants.

JACKSON, District Judge. The only question presented to the consideration of the court at this time arises upon the petition of Thomas J. White and others, filed in this cause some 11 years after the case had been tried at the bar of this court, to set aside a judgment rendered in it against the petitioners. The declaration of the plaintiffs in this cause was served upon Benjamin Fitzwater and others, and filed in the clerk's office of this court at July rules, 1884. At the time neither Sela White nor Andrew Claycomb were made parties defendant to these proceedings. At the November rules, 1884, an amended declaration was filed making additional parties defendants, among them the defendant Claycomb, but at this time neither White nor his heirs nor devisees were made parties. At the November term, 1884, an amended declaration was filed in court making Sela White a defendant with Andrew Claycomb, as joint owner, at which time J. M. McWhorter appeared as counsel for the defendants White and Claycomb to plead to the plaintiffs' declaration as amended. At the time this order was made in court it appears . from the evidence that Sela White was dead. At the spring term, 1886, McWhorter, as counsel for Sela White and Andrew Claycomb, suggested the death of both of the defendants White and Claycomb, and waived process against the heirs of the deceased defendants, and agreed to appear and plead for them at the next term of the court. At the fall term, 1886, which was the next order, the case was revived, upon the motion of McWhorter, by an order of the court, against the heirs of Claycomb and White. In December, 1886, a trial was had, and judgment rendered in said action against part of the defendants, including petitioners, for a large boundary of land mentioned in the plaintiffs' declaration. The defendants, replying to this petition, claimed that one John E. Stewart was employed and authorized by Claycomb to employ counsel to represent him, and that, Claycomb having a joint interest with White in the lands, his action bound White, although it does not appear from the evidence in this case that White ever knew of the employment of McWhorter as counsel to represent him.

From the view I take of this case, I do not think there is sufficient evidence to establish the relation of attorney and client between McWhorter and White in his lifetime, or his heirs after his decease, and therefore every step taken by McWhorter in representing the interests of White or his heirs was absolutely without authority. The judgment of the court, as against a man at a time when he was dead of course amounts to nothing, even if he had been properly impleaded in the cause of action; but it is to be borne in mind that there was an effort to amend the declaration in ejectment in a very unusual way. The amendment sought to be made, in the way it was done, could only be done by the consent of the defendants, after they had cognizance of the pendency of the action.

After a suit is once instituted against a party who is properly before the court on process duly served, and the party dies before judg. ment is obtained against him, the judgment obtained after his death is void. The only mode and manner in which the suit could be

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further prosecuted would be to revive it against his heirs upon a scire facias sued out for that purpose. This was not done in this case, and inasmuch as there was no party representing the heirs of White who could consent to revive the suit against him, and there being no steps taken to sue out necessary legal processes to revive, it follows that any judgment taken, either against White, after he is dead, or against his heirs, who are not properly before the court, must be held to be void in law, and would not bind the parties sought to be impleaded. It is contended, however, that in this case, from the long lapse of time, the court should presume an acquiescence by the heirs of White. In the judgment of the court in this case, the court would not be authorized to act upon a presumption of this character unless an unusual delay occurred after the parties had notice of the judgment in the case.

It clearly appears that White in his lifetime knew nothing about the pendency of this action, nor did his heirs after his death have notice until long after the rendition of the judgment. The delay that occurred after the heirs became informed of their interests inthe property was not unreasonable. There was not such a delay as amounts to laches.

As to the petitioner Sarah C. Johnson, who derived her interest in the property from Claycomb, there can be no question, in my mind, that McWhorter was counsel for Claycomb, and represented his interests in the land in controversy; and he having, as the attorney of Claycomb, made him a party to the suit in his lifetime, his heirs must be bound by the action of McWhorter, as Claycomb himself would be. For this reason I am of the opinion that the petition of Sarah C. Johnson must be dismissed. It is to be regretted that a judgment of the court of the age of the one under consideration should have to be disturbed after a period of 11 years has transpired; but when it appears that parties have been deprived of their legal rights by the judgment of a court, before they were impleaded, it is far better that the parties should be restored to their rights, although the rights of other parties have in the meantime intervened.

For the reasons assigned I am of the opinion that the judgment in the case as to the petitioners should be set aside, and a further trial directed, as between the plaintiffs and these petitioners, at the bar of this court.

MATZ et al. v. CHICAGO & A. R. CO.

(Circuit Court, W. D. Missouri, W. D. June 13, 1898.)

1. CODE PLEADING-NEGLIGence-Joinder of CAUSES OF ACTION.

To allege three distinct acts of negligence in one count, either one of which would give a cause of action prima facie,-one based on a city ordinance, one on a state statute, and the other on negligence at common law,-is bad pleading under the Missouri Code; and a motion to compel plaintiffs to elect on which cause of action they will rely is well taken. SAME-ALLEGATIONS OF NEGLIGENCE.

Negligence must be distinctly alleged; and, in an action for death at a railroad crossing, it is insufficient merely to aver that no watchman or