
    
      (Circuit Court of Cook County.)
    
    In the Matter of Amanda B. Thompson.
    (January 4, 1872.)
    1. .Officers — De Facto — -Acts of — Coeeaterae Attack. Where a person exercises the duties of an officer performing the functions by color of office, he is an officer de facto and his right to office cannot be collaterally attacked.
    
      - 2. Same — Commitment by De Facto Justice of Peace — Habeas Corpus. The act of a justice of the peace de facto in committing a person to jail cannot be attacked on habeas corpus, where, if he had been an officer de jure the committment would have been proper.
    Petition for habeas corpus. The facts are stated in the opinion of the court. Heard before Judge John G-. Rogers.
   Rogers, J.:—

It appears by the petition for the writ of habeas corpus filed by Amanda B. Thompson, the return of sheriff to said writ, and the copy of the mittimus under which she was committed, that said petitioner was examined before John Summer-field, acting as police magistrate, upon a charge of larceny; that she was found guilty of the charge and held to answer in the criminal court, and, failing to give bail, was committed to the custody of the sheriff, by whom she is detained in jail. Her discharge is sought upon the alleged ground that Summerfield, at the time he examined the charge and issued the mittimus, was not a justice of the peace of Coolc county. It was agreed upon the hearing that Summerfield was regularly elected and commissioned police magistrate of the city ■of Chicago some years ago ; that he was not appointed a justice of the peace by the governor, under the constitution, and that at the general election, duly called and held in November, 1871, he was elected a police magistrate for the city -of Chicago, took the oath of office and gave bonds as such, but that the governor of the state has failed to issue a commission to him as such police magistrate, and that the common council of the city has designated him to act as police magistrate for the south division of the city.

It also appeared that he was acting in that capacity at the time he issued the mittimus, under which the petitioner is held, although he signed it as “John Summerfield, Justice of the Peace.”

The question as to his right to the office, whether he held .an office de jure, was the only one discussed by the learned gentlemen, appearing for and against the petitioner, and. seemed to be the only one upon which a decision by the court-was desired. But in the view of the case taken by me, I' do not feel that it is either right or proper that I should undertake to decide that question. It is not necessary to the disposition of the ease, and, as such a decision would not settle the disputed right to the office, I do not feel inclined to investigate it fully or declare my opinion upon it.

There is more than one legal proceeding by which it can be finally and fully determined whether Summerfield is by legal right a police magistrate or justice of the peace. This-proceeding is not one of them. ,

John Summerfield, as it appeared by the agreed statement of the facts, down to the election held last November, a police magistrate of this city, duly elected and commissioned, was, at that election, voted for and declared elected for anotner term, executed bond as such, took the oath of office, and was subsequently designated by the common council of the city to act as police magistrate. He acted in that capacity, professing to be such officer.

It has often been held by the courts of last resort, in several of the states, and expressly so by the supreme court of this state, that when a person exercises the duties of an officer, performing the functions by color of office, he is an officer de facto, and his right to the office cannot be questioned collaterally. See Town of Lewiston v. Proctor, 23 Ill. 533.

Also, the People on the relation of People ex rel. Ballou v. Bangs, 24 Ill. 184, in which it was decided that, although Judge Bangs was not judge of the circuit court, de jure— his election not being authorized by the constitution, and therefore void — yet he had color of office, and, acting as he did, under that color, his acts were valid.

The court, however, decided that he did not hold the office of judge de jure, and ousted him. This was a proceeding to determine who was really and legally the judge, and if it is desired to test the same question so far as John Summer-field is concerned, the way is open and clear.

In People ex rel. v. Maynard, 14 Ill. 419, the supreme court decided that holding office under an old law, which did not make him a justice of the peace, could not be such justice under the then new constitution. That was a direct proceeding to test the question of right, and the court held that he was not a justice of the peace de jure. “But,” says the court, in referring to this Maynard ease, when deciding the Proctor case, supra, “had he assumed to act under his commission as a justice of the peace, it by no means follows that we should have held his acts void.”

These authorities are conclusive of the question presented here. I am bound by them, and whatever opinion I may entertain upon the right of Summerfield to the office, I am decidedly of opinion that his act under color of office in committing the petitioner was not void. Let the petitioner be remanded to the sheriff, to be held in custody under the mittimus issued by Summerfield.  