
    
      Ex Parte Jacob W. Strang.
    1. The acts of an officer defaeto, when questioned collaterally, are as binding as those of an officer de jure.
    
    2. To constitute an officer de facto of a legally existing office it is not necessary that he should derive his appointment from one competent to invest him with a good title to the office. It is sufficient if he derives his appointment from one having colorable authority to appoint; and an act of the general assembly, though not warranted by the constitution, will give such authority.
    3. By section 174 of the municipal code, the mayor, in the absence or disability of the police judge, is authorized to select a member of the bar to hold the police court, who, it is declared, shall have, for the time being, the jurisdiction and powers conferred upon judges of police courts, and shall be styled “ acting police judges.” S.'eld: That assuming (but without deciding the question) the power of appointment thus conferred on the mayor to be unauthorized by the constitution, yet the person acting under such appointment, would be a judge defaeto.
    
    Habeas corpus. Error to the probate court of Hamilton county.
    On the 19th of October, 1871, during the sickness and unavoidable absence of the Hon. W. F. Straub, judge of the police court of the city of Cincinnati, the Hon. S. S. Davis, mayor of said city, selected John W. Carter, Esq., a reputable member of the bar, residing within the city, to hold the police court during the inability of Judge Straub, in pursuance of section 174 of the act of May 7th, 1869, “to provide for the organization and government of municipal corporations.”
    Carter accepted the appointment, and entered upon the discharge of the duties of police judge, and was duly known, recognized and accepted as acting judge of the police court by the mayor of the city, by the chief of police, and all the subordinates of the police force, by the clerk and prosecuting attorney of the police court, and by all the officers connected therewith, and by the directors of the workhouse, by the common council of the city, and other •city authorities, and by the sheriff of the county; and had control of the seal of the police court, and signed the minutes and process thereof.
    While Carter was thus acting as police judge, to wit: on the 28th day of October, 1871, Jacob W. Strang, having been arrested on a complaint, made under oath, charging him with having given, on the 21st of the month, a musical performance for reward within the city, without a license therefor from the mayor, was brought into the police court, before Carter, acting as police judge, and pleaded guilty to the charge, and, having waived the right of trial by jury, was sentenced by acting police judge Carter, in the police court, to pay a fine of ten dollars and costs of prosecution, and that he stand committed, and be imprisoned in the workhouse of the city, until the fine and costs were paid, or he be otherwise discharged according to law.
    Strang, having neglected and refused to pay the fine and costs, was committed to the custody of the chief of police of the city, in whose hands was placed a mittimus from the clerk of the police court, under its seal, directed to the superintendent and directors of the workhouse, reciting the arrest and sentence of Strang, and commanding them to receive and safely keep him in their custody until the fine and costs were paid, or he be otherwise discharged according to law.
    Strang, being thus detained by the chief of police, to be conveyed to the workhouse and delivered to its directors in obedience to the sentence and mittimus, obtained from the probate court of Hamilton county a writ of habeas corpus, directed to the sheriff, who in obedience to its command, brought Strang before the probate court; and the chief of police appeared in court and filed an answer showing the facts above stated as to Strang’s arrest, sentence and commitment, as the cause of his detention.
    Thereupon Strang moved the probate court to issue an order for his discharge, on the ground that the police “ court ” had no jurisdiction over his person or the offense with which he was charged, for the reason that the law authorizing the appointment of an acting police judge, is unconstitutional and void. The probate court overruled this motion and remanded Strang to the custody of the chief of police,, to abide the judgment of the police court, or until discharged by due course of law.
    To all which Strang excepted, and filed his petition in error in this court, to reverse the order of the probate court..
    
      Dodds & Wilson for Strang :
    A prisoner is entitled to be discharged on habeas corpus when the proceedings and sentence are coram non judice and void. Ex parte Shaw, 7 Ohio St. 81 ; Ex parte Strahl, 16 Ohio, 369.
    The proceedings and sentence under which Strang is held are coram non judice and void. Section 174 of the municipal code authorizing the mayor to appoint a police judge,, is unconstitutional.
    The police court is one of the courts inferior to the supreme court, which the general assembly is authorized by sec. 1, art. 4 of the constitution to establish ; and the election and appointment of judges for the police court must conform to. the provisions of the constitution in that hehalf. Dillingham v. The State, 5 Ohio St. 280 ; Steamboat Northern Indiana v. Millikin, 7 Ohio St. 386.
    Judges must be elected by the electors of the judicial district for which a court is created, (Const, sec. 10, art. 4,) or be appointed by the governor in cases of vacancies, (Constsec. 13, art. 4); and these two modes are exclusive of every other. The Attorney General v. Conyngham, 65 Penn. St. 76. Sec. 27, art. 2, does not apply to the case. Sec. 10, art. 4, must govern it.
    The general assembly cannot clothe with judicial power any person not elected as a judge. Ex parte Logan Branch Bank, 1 Ohio St. 432; 65 Penn. St. 76.
    Under section 174 of the municipal code, the acting police judge is neither elected by the electors of the district for which the police court was created, nor appointed by the governor to fill a vacancy. The section is, therefore, unconstitutional ; and the person appointed by the mayor to be the acting police judge, is incapable of exercising any judicial functions, and all proceedings before him are corcim non judice and void. Ex parte Logan Branch Bank, 1 Ohio St. 432 ; Winchester v. Ayres, 4 Greene, (Iowa,) 104; People v. White, 24 Wend. 520; Hildreth’s heirs v. McIntire’s devisees, 1 J. J. Marsh. 206.
    He cannot be a judge de facto, for one acting under an unconstitutional law cannot be a judge de facto. He does not act under color of law ; for an unconstitutional law is the same as no law. Cooley’s Const. Lim. (2d ed.) 188 ; Loomis v. Spencer, 1 Ohio St. 153.
    
      J. Bryant Walker, T. G. Campbell and M. L. Buchwalter, contra:
    1. Under the circumstances of this case, the judge was a de facto officer, and his acts as such were valid, even on error; certainly they were not void on habeas corpus. The State v. Alling, 12 Ohio, 16, 20; The State ex rel Newman v. Jacobs, 17 Ohio, 143, 152; Fowler v. Beebe, 9 Mass. 231; McInstry v. Tanner, 9 Johns. 135; Parker v. Baker, 8 Paige Ch. 428-30; People v. Collins, 7 Johns. 549, 552; Willcox v. Smith, 5 Wend. 234; Reed v. Buffalo, 3 Keyes, 418; People v. White, 24 Wend. 520, 526, 540-2, 560, 567; Brown v. O'Connell, 36 Conn. 432; Ang. & Ames on Corp. (9th ed.) § 287, and cases there cited; Taylor v. Skrine, 3 Brevard, 516; Locke v. Halsey, 16 Peters, 71, 84, ’5; Clarke v. The Commonwealth, 29 Penn. St. 129, 137; The Commonwealth v. McCombs, 56 Penn. St. 436; Parker v. Kett, 1 Lord Raymond, 658, 660; Hooper v. Goodwin, 48 Maine, 79; McGregor v. Balch, 14 Verm. 428, 436; Brown v. Lent, 37 Maine, 423; Burke v. Elliott, 4 Iredell, (Law,) 358; 16 Viner’s Abr. 114; Gilliam v. Reddick, 4 Iredell, (Law,) 370; Barton v. Patton, 2 Jones, (Law,) 128; Tucker v. Aiken, 7 N. H. 113, 140.
    2. The law authorizing the appointment of a temporary judge is constitutional, and he was a judge de jure. Const., art. 4, secs. 1, 10, 13; The State ex rel The Attorney General v. The City of Cincinnati, 20 Ohio St. 33; Baker v. 
      The City of Cincinnati, 11 Ohio St. 542,’3; Walker, Solicitor v. Trustees of Cincinnati Southern Railway, decided by this court, but not yet reported.
    So far as the restrictive clauses do not limit the power of the legislature, it has full power. How far do they limit it? Only so far as the election of the regular judge and the filling of a vacancy goes. The law here complained of attempts to do neither. There was no vacancy; there was an elective office and an incumbent of it, but through sickness he was unable to perform his duties. The constitution is entirely silent upon the question of the provision to be made in such cases. Can any one doubt that the framers of the constitution intended that such cases should be provided for ? Certainly they must have done so; their silence only means that not being able to anticipate all the varying circumstances under which such disabilities might arise, they left it to the legislature to provide as seemed to them best for the cases, as they presented themselves. The People v. Fisher, 24 Wend. 215, 219.
   White, J.

On account of the public interests involved in the question raised in this case, we have allowed it, contrary to the usual practice, to be brought before this court directly from the probate court.

The question is, whether the prosecution and sentence of the plaintiff in error in the police court of Cincinnati, before the acting police, judge, was coram non judice, and, therefore, a nullity.

If this question is to be answered in the affirmative, the judgment of the probate court, in the proceeding on habeas corpus, refusing to discharge the plaintiff in error, and remanding him to custody, must be reversed; otherwise the judgment of the probate court must be affirmed.

The jurisdiction and powers of police courts are defined in chap. 13 of the municipal code. 66 O. L. 176. Their jurisdiction embraces municipal offences, and certain specified offences against the laws of the State.

Section 171 provides : “The police court shall always be open for business, but may adjourn from day to day, or from time to time; and the mode in which business shall be brought before the court shall be fixed by ordinance of the city council, or the rule of the court.”

Section 174 is as follows : “ In the absence, inability or disability of the [police] judge, it shall be lawful for the mayor to select a reputable member of the bar, residing within the city, to hold said court, and for the time being such person shall have the jurisdiction and powers conferred upon judges of police courts, and shall be styled ‘ acting police judge,’ in which style he shall sign all process and records during the time he shall serve, and shall perform all other official acts pertaining to said office.”

By section 175, before entering on the discharge of his duties, he is required to take “ an oath to support the constitution of the United States, the constitution and laws of the State of Ohio, the charter and ordinances of the city, and an oath of office.”

By section 61 it is provided that “the officers of cities of the first class shall consist of a mayor, solicitor, treasurer, street commissioner, police judge, prosecuting attorney of the police court, clerk of the police court, all of whom shall be elected,” etc.

The ground on which the sentence pronounced by the acting police judge is claimed to be corcim non judice, is, that section 174 of the code under which he was appointed is in conflict with §§ 10 and 13 of art. 4 of the constitution, which declare that all judges, other than those provided for in the constitution, shall be elected by the electors of the judicial district for which they may be created ; and, in case of vacancy in the office of a judge, such vacancy shall be filled by appointment by the governor.

We do not find it necessary to decide the question here made as to the constitutionality of the section of the statute authorizing the mayor, in the specified contingencies, to appoint a judge for the police court.

If the acting judge, as he is styled, was a judge de facto, his judgments would be as unquestionable, in the collateral proceeding by habeas corpus, as if he were a judge de Jure.

The legal existence of the police court, or of the office of police judge, irrespective of whether there was an incumbent of the office, cannot be doubted. No question is made, nor can be, as to the authority of the legislature in creating the court or the judicial office. In Dillingham v. The State, (5 Ohio St. 281,) it was held that the police court of Cincinnati, established under the municipal corporation act of May 3, 1852, and which was invested with a similar jurisdiction to that of the present police court, was one of the courts inferior to the supreme court, which, by the constitution, the general assembly were authorized to establish. The same doctrine was held in the case of the Steamboat Northern Indiana v. Millikin, (7 Ohio St. 384,) in regard to the office of mayor of Toledo. In both these cases, however, the jurisdiction drawn in question was not of matters arising under the municipal ordinances. Whether an officer or court exercising a jurisdiction limited to cases arising under such ordinances, would come within the provisions of the constitution referred to, we do not here deem it necessary to inquire. In this case we regard the acting police judge in the light in which he is regarded by the statute, as commissioned or appointed to hold the police court, and to exercise all the jurisdiction pertaining thereto. This is the view in which the case has been submitted in argument.

It is to be observed that the question raised is not an inquiry into the jurisdiction of the court, but an inquiry into the right of the judge to hold the office, which is a question entirely distinct from that of the jurisdiction of the court over the offence. 9 Wis. R. 267.

Assuming, then, for the purposes of this case, (without deciding the question,) that the legislature, under the circumstances mentioned in the statute, could not, constitutionally, authorize the mayor to appoint a police judge, the question is, was the person assuming to discharge the duties of the office under such an appointment, and being otherwise qualified, in accordance with the statute, a judge de facto 9

We attach no importance to the fact that he is required to style himself officially as “ acting police judge.” This is merely descriptive of the temporary character of his term. The legal effect of his official acts would not have been different if he had been required to style himself “ police judge.”

An officer de facto is variously defined or described in the .authorities.

Lord Ellenborough, in The King v. The Corporation of Bedford Level, (6 East. 369;) quoting substantially the language of Lord Holt, in Parker v. Kett, (1 Lord Raymond, 660,) says : “ 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.”

In Miner’s Abridgement, (vol. 16, p. 114,) it is said: “ Acts done by an officer de facto, and not de jure, are good; as if one being created bishop, the former bishop not being deprived or removed, admits one to a benefice upon presentation, or collates by lapse, these are good, and not avoidable. For the law favors acts of one in a reputed authority, and the inferior shall never enquire if his authority is lawful.”

In Brown v. Lent, (37 Maine, 428,) the act of a justice •of the peace in acknowledging a deed after his commission had expired, was drawn in question, and held valid. In the opinion, an officer defacto is described as “ one who actually performs the duties of the office with apparent right, under ■claim of color of appointment or election. He is not an officer de jure, because not in all respects qualified and authorized to exercise the office ; nor a usurper who presumes to act officially, without any just pretense or color of title. The mere claim to be a public officer will not constitute one an officer de facto. There must be at least a fair color of right, or an acquiescence by the public in his official acts so long that he may be presumed to act as an officer by the right of election or appointment.” See, also, Burk v. Elliott, 4 Iredell’s L. R. 355.

The authorities are numerous in which similar language has been used.

The direct question in this case is, whether the reputed, or colorable authority required to constitute an officer de facto can be derived from an unconstitutional statute.

The claim that it cannot, seems to be based on the idea that such authority can only emanate from a person or body legally competent to invest the officer with a good title to the office. We do not understand the principle to be so limited. We find no authorities maintaining such limitation, while we find a number holding the contrary. Fowler v. Bebee et al. 9 Mass. 231; Commonwealth v. Fowler, 10 Mass. 290.

The true doctrine seems to be, that it is sufficient if the officer holds the office under some power having color of authority to appoint; and that a statute, though it should be found repugnant to the constitution, will give such color.

In Taylor v. Shrine, (3 Brevard, 516,) an act of the legislature authorized the governor to appoint and commission some fit and proper person to sit as judge, etc., in case any of the judges on circuit should happen to be sick or become indisposed, and unable to hold court in his circuit. The presiding judge, in the case then in question, had been appointed by the governor, pursuant to the provisions of that act. After the decree in the case had been rendered, the act authorizing the appointment of such judge was declared void, as being in conflict with the constitution. The court say: “ The only question now is, whether all the acts of the judge so appointed are necessarily void. The judge, in this case, acted under color of legal authority; he had a commission under the seal of the State, signed by the governor, and authorized by an act of the legislature; no objections were made to his authority at the time the decree was given. The public acts of officers de facto are often valid, though the authority under which they act is void.”

In Brown v. O'Connell, (36 Conn. 432,) an act of the legislature authorizing the appointment of a judge of the police court by the common council of the city of Hartford was held void, on the ground that the appointing power could not, constitutionally, be conferred upon the common council; but the person thus appointed was declared to be a judge de facto, and it was held that a recognizance entered into before him in the police court for the appearance of a prisoner was valid.

In the case of The State ex rel. Attorney General v. Messmore, which was a proceeding in quo warranto before the supreme court of Wisconsin, the defendant was charged with unlawfully usurping the office of judge of the sixth judicial circuit in that State. The defendant claimed to have been duly appointed to the office by the governor, under an act of the legislature. The same act under which he was appointed assumed to transfer the rightful judge of the circuit to another. The court held that so much of the act as undertook to transfer the judge of the sixth circuit to another, and to authorize the governor to appoint another judge for the sixth circuit, was unwarranted by the constitution, and void; and judgment of ouster was rendered against the defendant. 14 Wis. R. 164. Yet in the subsequent case of The State v. Bloom, where the authority of the appointee of the governor to hold court and pronounce sentence, while he assumed to discharge the duties of judge, was drawn in question, collaterally, in a proceeding in habeas corpus, he was held to be a judge de facto. 17 Wis. R. 521.

To the same effect is the opinion of the supreme court of Illinois in the case of The People ex rel. Ballou v. Bangs, 24 Ill. R. 184.

The judgment of the probate court is affirmed.

Welch, C. J., and Day, McIlvaine and West, JJ., concurred.  