
    In re Woolcott.
    
      March 14
    
    April 11, 1916.
    
    
      Officers de facto: Judge of county court: Appointment under void statute and under other name: Color of title: Existence of de jure officer.
    
    
      1. The person appointed as judge of a superior court under a void act of the legislature (ch. 518, Laws 1915) which purported to create such superior court, to vest in it all the powers of a county court, and to abolish the latter court, having, under color of such appointment and the provisions of said act, ousted the de jure county judge, taken possession of the county court room, records, and papers, and thereafter exercised all the powers and functions of the county judge, became a de facto judge of the county court and his acts as such are valid as to third persons.
    2. Neither the fact that said appointee acted under the name of judge of the superior court in exercising the functions of the county court, nor the fact that there was in existence a de jure judge of the county court, affects the validity of the acts of such de facto judge.
    3. There can be no de facto officer of an office which does not exist de jure; but where there is a de jure office there may be a de 
      
      facto officer thereof even though he was not appointed or elected thereto in the name of such office.
    4. Van Slyke v. Trempealeau Go. S’. M. F. Ins. Go. 39 Wis. 390, and Fenelon v. Btitts, 49 Wis. 342, distinguished. Kempster v. Milwaukee, 97 Wis. 343, explained and language therein qualified.
    Weit of habeas corpus issued to test the validity of the commitment of TSrslcine Woolcott to the northern hospital for the insane.
    Ch. 518 of the Laws of 1915 purported to create a superior court of Eond du Lae county which should exercise all the functions of the county court thereof and to abolish the latter court. On September 2, 1915, F. W. CiiadboubNE, appointed by the governor as judge of the superior court, demanded possession of the county court room and the records, files, and papers therein from the then duly elected and acting county judge, A. E. Exciitee, who under protest and claiming that he was still county judge delivered up such possession and no longer assumed to act as county judge. Thereafter and until'the filing of the decision in State ex rel. Richter v. Ghadbourne (162 Wis. 410, 156 N. W. 610) on February 22, 1916, declaring void the act creating the superior court and abolishing the county court, Judge Cixad-boueNE continued to exercise all the functions of the county court under the name of judge of the superior court of Fond du Lac county. The public recognized such superior court and F. W. ChadboubNe as judge thereof, and business was transacted in said court by the public until the above mentioned decision was filed. While so acting and on, January 3, 1916, after due hearing he adjudged TSrslcine Woolcott insane and ordered him committed to the northern hospital for the insane. That part of ch. 518, Laws of 1915, attempting to confer jurisdiction of the county court upon the superior court reads as follows:
    “Section 65. From and after September first, 1915, all of the powers of the county court of Fond du Lac county and of tbe county judge shall be and hereby are transferred to and vested in the superior court of Fond du Lac county and its judge.
    “Section 66. From and after the first day of September, 1915, the county court of Fond du Lac county shall be and hereby is abolished and the office of the judge of said county court vacated.
    “Section 67. All matters and proceedings pending before the county court of Fond du Lac county or the judge thereof on September first, 1915, shall be and hereby are transferred to and vested in the jurisdiction of the superior court of Fond du Lae county and of its judge.
    “Section 68. All of the records, files, proceedings and property of the county court of Fond du Lac county on September first, 1915, shall be and hereby are turned over to and vested in the superior court of Fond du Lac county and its judge.”
    Petitioner claims that Judge ChadeoueNE had no jurisdiction to hear and determine the matter and hence that the commitment is void.
    
      B. L. Morse, for the petitioner.
    For the respondent there was a brief by the Attorney General and E. E. Brassard, assistant attorney general, and oral argument by Mr. Brossard.
    
    A brief was also filed by Doe, Ballhorn, Wilkie & Doe, as friends of the court, and the cause was argued orally by H. M. Wilkie.
    
   ViNJE, J.

The relator challenges the validity of his commitment to the asylum on the ground that Judge Chab-boueNe was neither a de jure nor a de facto judge of the county court, and could not be either while purporting to act as judge of the superior court; that he was a mere intruder, and his acts were therefore void and subject to collateral attack. To sustain this position the following cases from our own court are cited: Van Slyke v. Trempealeau Co. F. M. F. Ins. Co. 39 Wis. 390; Fenelon v. Butts, 49 Wis. 342, 5 N. W. 784; Kempster v. Milwaukee, 97 Wis. 343, 72 N. W. 743. Before calling specific attention to these cases it is deemed best to state the situation in the case at bar. The decision in State ex rel. Richter v. Chadbourne, 162 Wis. 410, 156 N. W. 610, established the facts (1) that the county court of Fond du Lac county was not abolished by ch. 518 of the Laws of 1915 and the acts amendatory thereof; (2) that Judge ChadboubNE ousted the de jure judge thereof, took possession of the county court room, records, papers, and files, and from September 1, 1915, continued to exercise all the functions of county judge under the title of judge of the superior court; and (3) that he ousted the county judge under color of title, namely, his appointment as judge of the superior court by the governor of the state and the provisions in ch. 518 that the jurisdiction of the county court was transferred to the superior court. We have therefore the existence of a de jure office, the county court, the ousting therefrom, under color of title, of the de jure officer thereof, the county judge, by Judge ChadboueNE, and his exercise of all the functions of the office of the county court under the name of judge of the superior court. County courts were created by the constitution under the name of courts of probate (art. VII, sec. 2), and though under sec. 14, art. VII, the jurisdiction may be transferred to other inferior courts lawfully established, their function cannot be abolished by the legislature. Hence the attempted creation of the superior court and the transfer thereto of the jurisdiction of the county court did not affect the existence of the county court as a de jure office. Judge OhadboueNe’s entrance into, and continuance in, such office meets all the requirements of a de facto officer as defined by this court in Ekern v. McGovern, 154 Wis. 157, 220, 142 N. W. 595, where it said:

“A person may be a de facto officer and have no real title at all to the place he assumes to have the right to. If one is in possession of an office, performing its duties, and entered by right or such claim of right as not to be classible as a usurper, or have been in undisturbed possession so long as to be equivalent to an entry under .claim of right, and still claims in good faith to be entitled to the office, and all surroundings afford an appearance of de jure official status, — be is, as a general rule, de facto wbat be claims to be. Wbat gives bim that status is color of authority, — color of title is not essential, strictly speaking.”

The authorities supporting this definition of a de facto officer are collected in the Ehern Case and need not be repeated here. In Norton v. Shelby Co. 118 U. S. 425, 444, 6 Sup. Ct. 1121, the court uses this language:

“Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts is concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions.”

The reason for the rule that acts done by a de facto officer in a de jure office are valid'rests upon grounds of public policy. If the contrary were held, official acts of the gravest character would have to be declared void by reason of a defect in the title of the incumbent to the office. Property and per-, sonal rights would be subject to constant hazards, arising not out of any infirmity in the procedure settling them, but out of a defect in the title of the official exercising the functions of the office — a defect not in any way logically connected with the proper exercise of the assumed functions. Hence, given a de jure office and a de facto incumbent thereof, there is a valid exercise of the powers'of the office.

The fact that Judge ChadboubNb acted under the name of judge of the superior court instead of judge of the county court is immaterial. His so acting was under the color of a right conferred by the void acts creating the superior court. Under such, color of right he assumed to, and did in fact, exercise all the powers and functions of the county court. That he did not assume the name of the office is due to the fact that he supposed the jurisdiction of the county court was transferred to the superior court and that he was authorized to transact the business of the former court under the title of the latter. There never was any doubt in the minds of either parties, counsel, court, or the public that Judge Chadboubite in acting upon matters under the jurisdiction of the county court did so to the exclusion of the eounty judge. That is what the void law said he should do and that is what he did. Having taken the substance of the office he is none the less a de facto judge though he did not assume its title. The inherent character of an act is not destroyed by.a mere change in the form thereof, nor is such character changed by giving it a new name. The functions that belong to an office and not its name determine its identity. Kirker v. Cincinnati, 48 Ohio St. 507, 27 N. E. 898.

That there was in existence a de jure officer of the county court at the time Judge OiiadbotiRUe was de facto judge thereof does not affect the validity of his acts as a de facto judge, he having ousted the de jure judge and exercised the functions of the office. In re Boyle, 9 Wis. 264; State v. Bloom, 17 Wis. 521; Laver v. McGlachlin, 28 Wis. 364.

If we analyze the cases in this state referred to as more particularly relied upon by the relator, we find that Van Slyke v. Trempealeau Co. F. M. F. Ins. Co. 39 Wis. 390, was a case where under a statute declared to be unconstitutional it was provided that instead of a change of venue upon a disqualification of the circuit judge the parties might stipulate to try the case before a member of the bar of the supreme court, and the validity of a judgment of an attorney so chosen came into question. The court held it void on the ground that there was no de jure office which the attorney acting as judge attempted to fill. He did not claim to act as a circuit judge nor attempt to oust him from office. The judgment was therefore coram non judice. In Fenelon v. Butts, 49 Wis. 342, 5 N. W. 184, it was held that a court commissioner could not lawfully he appointed to exercise jurisdiction in two counties; that a person so appointed was not appointed to any office known to the law and hence could not be a de facto officer of any lawful office, and his acts were void. In both of these cases there was an absence óf a de jure office. The same is trne in Kempster v. Milwaukee, 97 Wis. 343, 72 N. W. 743, though the real question there decided was the right of the de jure officer to his salary during the time he had been wrongfully excluded from office. The validity of the acts of the alleged de facto officer was not in question and was not adjudicated. Language in the opinion to the effect that there was no de facto health commissioner must be construed in conjunction with the charter provisions that there was no such office as “acting commissioner of health” in Milwaukee, that being the office to which the alleged de facto officer was appointed, and the further charter requirement that the appointment to the office of health commissioner by the mayor must be confirmed by the common council — the appointment in question not having been so confirmed. The court reached the conclusion that since the mayor’s appointment was to an office that did not exist, there could be no de facto officer of such office. It then goes' on to state that “the mere designation of a person, without authority of law, to perform the duties of the office, did not make such person an officer de facto, or furnish any justification for payment of the salary incident to the office to such person,' that can be pleaded in defense of the claim of the officer de jure, made upon his regaining his office.” The court was dealing with the question of salary and not with the question of the validity of the acts of de facto officers. If there be language in the opinion which can be construed to the effect that, given a de jure office, there can be no de facto officer thereof unless the appointment or election thereto is eo nomine and in all respects regular, it is disapproved and held not applicable to a case involving the validity of the acts of a de facto officer.

In Van Slyke v. Trempealeau Co. F. M. F. Ins. Co. 39 Wis. 390, 396, the court through Ryan, G. J., quotes approvingly this language from In re Boyle, 9 Wis. 264:

“Every person assuming to exercise the authority of an officer, does not thereby make himself an officer de facto. But when it appears that the person exercising the powers of an office, is in by such a color of right, and that he has such possession of the office, as makes him an officer de facto, then his acts as to third persons are valid, and his right to hold the office can only he inquired into in some direct proceeding for that purpose.”

The cases of In re Boyle, 9 Wis. 264; State v. Bloom, 17 Wis. 521; and Laver v. McGlachlin, 28 Wis. 364, were distinguished from the case then under consideration on the ground that in the cases mentioned the judge held the office under color of title. So in the present case Judge Ciiad-bouene held under color of title, had complete possession of the office, room, records, and papers of the county court, an existing de jure office, and exercised in full the powers and duties thereof. Eor that reason he was a de facto judge of a de jure court and his acts are valid as to third persons.

By the Gourt. — The writ of habeas corpus is quashed.  