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Norton vs. Shelby County 118 U.S.

425 May 10, 1886 Facts: A case was filed before the Tennessee Court, questioning the action upon twenty-nine bonds of $1,000 each, alleged to be the bonds of Shelby County, Tennessee, issued on the first of March, 1869, and payable on the first of January, 1873, with interest from January 1, 1869 at 6 percent per annum; and three coupons of $60 each. Plaintiffs contend that the commissioners who issued to them the said bonds were lawful officers, thereby authorized to bind the county to the legal obligations of the bonds. However, the defendants contend that such commissioners were not lawful officers, thereby absolving them from the legal obligations of the bonds, and that there was no office in Tennessee as that of a county commissioner, and thereby rendering the issued bonds as void. Also they challenged the statutes that commissioned the commissioners, particularly the act of March 9, 1867 which provides for the creation of the board of commissioners in issuing the bonds, as unconstitutional. Issue: Whether or not the act of March 9, 1867 is unconstitutional, therefore rendering the commissioned officers as illegally appointed. Held: The Tennessee high court rendered the act of March 9, 1867 unconstitutional. The creation of the board of commissioners also confers the powers of the justices of the peace of the county court, and such a provision is unconstitutional and void, since these powers shall be exercised only by the justices. It is difficult to meet it by any argument beyond this statement: An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. The Supreme Court affirmed this decision. However, it said that even if the commissioners were not appointed de jure, they were working de facto, thus still providing lawful authority. It is contended that if the act creating the board was void, and the commissioners were not officers de jure, they were nevertheless officers de facto, and that the acts of the board as a de facto court are binding upon the county. This contention is met by the fact that there can be no officer, either de jure or de facto, if there be no office to fill.