
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Shearer, C. J. ; and Haynes and Parker, JJ.
    (Judge Shearer, of second circuit, sitting in place of Judge King.)
    GITSKY v. NEWTON.
    A “judge and justice of the peace”, elected, commissioned and qualified under section 621-1 et seq., Revised Statutes, (93 O. L., 322) is at least a de facto officer, colore officii, and against all but the state an officer de jure; and the title of his office cannot be questioned otherwise than by proceedings in quo warranto.
    
    (Affirmed by the Supreme Court without report.
    See 41 Bulletin, 268.)
    Error to the Court of Common Pleas of Lucas County.
   Sheakee, O. J.

The original action was in forcible detainer before a “judge and justice of the peace” of the city of Toledo— locally called a “city judge”. Judgment was rendered in favor of the defendant in error, and affirmed in the court of common pleas. To reverse these judgments is the object of the present proceeding.

The grounds assigned for error, among others, are the overruling of a motion to quash the service of summons and a motion to dismiss the action for want of jurisdiction by reason of the alleged unconstitutionality of the act authorizing the election, in cities of the third grade, first class, of “judges and justices of the peace.” Revised Statutes, sec. 621-1 et seq., (93 0. L. 322). In other words, that the statute being invalid,the judgá and justice of the peace (or city judge) had no legal existence nor power to hear and determine the cause.

This contention is disposed of adversely to plaintiff in error in The State v. Gardiner, 54 Ohio St., 24, the syllabus of which case reads as follows:

“In a prosecution for offering a bribe to an officer, who is acting as such under a statute providing for the.government of a municipal corporation, the defendant cannot question the constitutionality of such statute.”

Gardiner was indicted for attempting to bribe one Hugill, who held the office of City Oommissioner of Akron. A demurrer was interposed to the indictment on the ground that the statute under which Hugill was acting was unconstitutional. and that, assuming the invalidity of the statute, the office had no existence in law or in fact, and there could be no officer defacto or de jure.

The court of common pleas sustained the demurrer, and this action was made a ground of exceptions in the supreme court, where the exceptions were sustained.

In the course of the concurring opinion Spear, J., says, quoting from Campbell v. The Commonwealth, 96 Pa. St., 344.

“The prisoner had been convicted in Fayette county of arson in burning a dwelling house and other buildings.
“Two associate judges, not learned in the law, but who had been elected by the people of the county and commis-. sioned, sat with the president judge and participated in the trial and sentence. The validity of their title to the office, and hence of the composition of the court, was questioned on the ground that, under the constitution of 1874 and subsequent legislation, the people had no power to elect associ- ' iate judges in Fayette county. It was held that they were judges defacto, and as against all parties but the commonwealth they were judges de jure,and,having at least a color-able title the their offices, their title thereto could not be questioned in any other form than by quo warranto at the suit of commonwealth”—

So here, the city judge and justice of the peace had at least a colorable title to his office,and was an officer de facto was in possession of his office,performing its duties, and until he is in some direct way adjudged to be without authority, his official acts are to be regarded as valid. They can not be collaterally attacked.

The admission of certain testimony is the basis of one of the assignments of error. It tended to question the title of the landlord, defendant in error. This could not be allowed unless it were shown that the defendant in error-had parted with his title, or the like, after suit was brought. It was not claimed that anything of the kind had taken-place.

Moses G. Bloch, for Plaintiff in Error.

Kinney & Newton, for Defendant in Error.

It is also asserted that the trial court erred in excusing one of the jurors summoned in the cause, without the consent and against the objection of plaintiff in error; but no prejudice appears to have resulted from such action.

Finding no error to the prejudice of the plaintiff in error, the judgment will be affirmed.  