60. De jurE AND DE FACTO JUDGES. The subject of de facto courts, which bears upon the question now to be taken up, has been touched upon in another section.1

An officer de facto is one who is claiming the right to hold the office and is performing the duties thereof under such claim, either under color of title or with the knowledge and acquiescence of the public.2

It will be seen that most of the definitions given of an officer de facto exclude the element of color of right or

1 Ante, sec. 28.

2 "An officer de facto is one who has the reputation of being the officer he assumes to be and yet is not a good officer in point of law." Parker v. Kett, 1 Ld. Raym. 658; Cromer v. Boinest, 27 S. Car. 436; 3 S. E. Rep. 849; Hamlin v. Kassafer, 15 Or. 456; 15 Pac. Rep. 778; Ex parte Strang, 21 Ohio St. 610, 617.

"An officer de facto is one who exercises the duties of an officer under color of an appointment or election to that office, or who has the reputation of being the officer he assumes to be. He differs, on the one hand, from a mere usurper of an office, who undertakes to act as an officer without color of right; and, on the other, from an officer de jure, who is, in all respects, legally appointed and qualified to exercise the office. 12 Am. & Eng. Enc. of Law, 23.

"A definition sufficiently accurate and comprehensive to cover the whole ground must, I think, be substantially as follows: 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:

"First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be.

"Second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like.

"Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.

"Fourth, under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such. "Any thing less comprehensive and discriminating will, I think, be imperfect and deceptive as a definition." State v. Carroll, 38 Conn. 449; 9 Am. Rep. 409; State v. Lewis, 107 N. Car. 967; 12 S. E. Rep. 457.

title as being absolutely requisite, and the weight of the decisions seems to be that it is not requisite.'

The better rule seems to be that the party who relies

"The question as to what will constitute a de facto officer has been the subject of judicial inquiry in very many cases, both in England and in this country, and, while it must be admitted that there is some conflict of opinion, it seems to us that the weight of authority, as well as argument, is against the view contended for by the appellant. According to that view, as we understand it, the mere fact that one is found in the exercise of the duties of an office, without question of his authority as such, is not sufficient to constitute him a de facto officer, unless he is in such office by some color of right or title, even though he may be apparently invested with all the insignia of office.

"The de facto doctrine rests upon considerations of public policy and necessity. It was introduced into the law for the purpose of protecting the interests of the public, as well as those of private individuals, where those interests were involved in the official acts of one who may be found exercising the duties of an office, though without lawful authority. Hence, where a person is called upon to deal with such an officer, he is not bound to inquire whether his title to the office is good; and for a like reason it seems to us that he should not be required to inquire whether such title is colorable. In fact, he is not called upon to inquire into the title of such an officer at all, but may safely assume that he is what he appears to be, and what the public generally regard him to be. As said by Devens, J., in Petersilea v. Stone, 119 Mass. 465; 20 Am. Rep. 335, 'third persons, from the nature of the case, can not always investigate the right of one assuming to hold an important office, even so far as to see that he has color of title to it by virtue of some appointment or election.'

"The case of State v. Carroll, 38 Conn. 449; 9 Am. Rep. 409, seems to be a leading case upon the subject. There, Butler, C. J., subjects the authorities, both English and American, to an elaborate review, and shows that the idea that there must be some color of right, derived from some election or appointment, in order to constitute one a de facto officer, is without foundation, and is based upon what he characterizes as ‘a brief, inaccurate, and deceptive report' of the case of Rex v. Lisle, 2 Strange, 1090, as is shown by a fuller and more accurate report of the same case in Andrews, 163. On the contrary, he adopts the definition of a de facto officer given by Lord Ellenborough, in Rex v. Bedford Level, 6 East, 356, generalized from a previous definition given by Lord Holt, in Parker v. Kett, 1 Ld. Raym. 658, as follows: 'An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law;' which definition, he says, 'has never been questioned since, in England, and is now the rule there."" Cromer v. Boinest, 27 S. Car. 436; 3 S. E. Rep. 849.

upon the acts of one assuming to be a judge is not bound to show that he acted under color of title to the office'.

He has the right to assume that one acting in such a capacity is acting lawfully, and is what he appears to be, and what the public generally regard him to be, and that, if he so acts, and his acts are acquiesced in by the public, litigants will be bound thereby."

It will be found that a distinction is recognized, in some of the cases, in respect to the necessity of showing color of title, between a case where the party assuming the right to act is concerned, and where the question arises between third parties affected by his acts. It being held that in the former case color of right must be shown, while in the latter it is unnecessary.3

In some of the definitions given in the notes below, the element of reputation is included as necessary to constitute the party assuming to act as a de facto officer where color of title does not appear. In these cases the reputation acquired by the actual performance of the duties of the office acquiesced in by the public, takes the place of the color of title required in other cases.*

One acting under appointment of one having a colorable right to make the appointment is a de facto officer." Not only so, but an appointment to an officer by one who has no authority whatever to make the appointment is held to give color of title, and to constitute the person acting under it an officer de facto. So where one is elected

1 Cromer v. Boinest, 27 S. Car. 436; 3 S. E. Rep. 849.

'Petersilea v. Stone, 119 Mass. 465; 20 Am. Rep. 335; State v. Carroll, 38 Conn. 449; 9 Am. Rep. 409; Ex parte Strang, 21 Ohio St. 610, 617; Hamlin v. Kassafer, 15 Or. 456; 15 Pac. Rep. 778.

3

3 Petersilea v. Stone, 119 Mass. 465; 20 Am. Rep. 335; Conover v. Devlin, 15 How. Pr. 470, 477.

* Conover v. Devlin, 15 How. Pr. 470, 477; Brown v. Lent, 37 Me. 428; Ex parte Strang, 21 Ohio St. 610, 617; Hamlin v. Kassafer, 15 Ore. 456; 15 Pac. Rep. 778.

'Ex parte Strang, 21 Ohio St. 610.

State v. Bloom, 17 Wis. 521; Laver v. McGlachlin, 28 Wis. 364 State v. Lewis, 107 N. Car. 967; 12 S. E. Rep. 457

judge before the law authorizing such election takes effect, and enters upon the duties of the office.1

The mere exercise of the duties of the office, without color of right, or acquiescence therein by the public, can not render one an officer de facto. He is a mere usurper and his acts are void. And if one does not assume or claim to act as judge, but in some other capacity not entitling him to perform judicial functions, he is not a judge de facto. But the authority is given in some of the states to appoint an attorney to act, temporarily, and perform the duties of judge. These statutes, and the powers of such special judges will be considered in another section.3

The attorney so appointed can not be regarded as a judge de facto. He is not acting under a claim to hold and exercise the duties of the office of judge or to have other powers or authority than those actually vested in him by appointment. He is therefore a de jure and not a de facto officer. And under the statutes mentioned, he is in legal effect the judge of the court in fact, so far as his appointment extends, and such appointment vests him with the powers of a judge.

But it is held that an attorney irregularly appointed judge pro tem., where such appointment is authorized by statute, is a judge de facto.*

There can be no judge de jure or de facto if there is no court or office of judge. Therefore the acts of one assuming to act as the judge of a pretended court having no existence, are void, and may be attacked collaterally."

2

1 In re Boyle, 9 Wis. 264.

Ante, sec. 28; Van Slyke v. Trempealeau F. M. F. Ins. Co., 39 Wis. 390; 20 Am. Rep. 50; Houghland v. Creed, 81 Ill. 506.

3 Post, sec. 61.

* Post, sec. 61; Hunter v. Furgeson, 13 Kan. 462, 474; State v. Murdock, 86 Ind. 124.

5

Ante, sec. 28; People v. Toal, 85 Cal. 333, 338; 24 Pac. Rep. 603; Pecple v. White, 24 Wend. (N. Y.) 520, 539; Walcott v. Wells, 24 Pac. Rep. 367, 370; Norton v. County of Shelby, 118 U. S. 400; 6 Sup. Ct. Rep. 1121, 1125; Carleton v. People, 10 Mich. 259; Hildreth v. McIntere, 1 J. J. Marsh. (Ky.) 206.

Ante, sec. 28; People v. Toal, 85 Cal. 333, 338; 24 Pac. Rep. 603; Norton. County of Shelby, 118 U. S. 400; 6 Sup. Ct Rep. 1121.

It is otherwise where one is acting as judge of an existing court and claiming to be such judge under a colorable title to the office, or other circumstances constituting him judge de facto. His acts are not void, or even voidable, on collateral attack. His acts are as valid and binding upon litigants as the acts of a de jure judge. And the only remedy is a direct action against him to oust him. him from the office or to contest his right to hold it. But the question whether he is a de facto judge or a mere intruder may be determined collaterally.3

Usually the action to remove him must be by quo warranto in the name of the state. But in some of the states a statutory proceeding, in the nature of quo warranto, is provided for as a means of contesting the title to an office. So it may, in some of the states, be accomplished by a contest of his right to the office by one claiming to be the de jure judge, or by an elector of the county or district. However he may be removed from office, his powers. cease from that time. But until such removal his acts are

valid and binding.

It has been held that where the term of the office of judge has terminated by the constitution, on a certain day, but both the judge and his successor, in good faith and not without reason, construed the constitution as extending the term one day longer, the outgoing judge was,

1 Ex parte Strang, 21 Ohio St. 610, 617; Keith v. State, 49 Ark. 439; 5 S. W. Rep. 880; Manning v. Weeks, 139 U. S. 504; 11 Sup. Ct. Rep. 624; Ball v. United States, 140 U. S. 118; 11 Sup. Ct. Rep. 761; State v. Bloom, 17 Wis. 521.

2

People . Sassovich, 29 Cal. 480; Hull v. Superior Court, 63 Cal. 174; Keith v. State, 49 Ark. 439; 5 S. W. Rep. 880; People v. Gobles, 67 Mich. 475; 35 N. W. Rep. 91; Ex parte Johnson, 15 Neb. 512; 19 N. W. Rep. 594; People v. Bangs, 24 Ill. 184.

3" While the question of strict title to an office can be inquired into and determined only by a direct proceeding, and while courts will not, in a collateral proceeding, make such investigation, they may and will make such inquiry as will establish the line between the mere intruder into an office and one holding it under some color of title, some semblance of right between him without any authority whatever." United States v. Alexander, 46 Fed. Rep. 728.