
    * The State of Ohio, on relation of John Whitbeck, Prosecuting Attorney of Huron County, v. Pruden Alling.
    The appointment of a clerk of the court of Common Pleas, at a regular session, by judges de facto, although not judges dejvre, is a valid appointment.
    This is an Information in the nature of a Quo Warranto, from Huron county.
    In the information, it is averred by the relator, that the defendant, on the 6th day of June, 1840, at Norwalk, in Huron county, usurped, intruded into, and, without any legal warrant, appointment, or right, whatsoever, unlawfully held and exercised the office of clerk of the court of Common Pleas of said county, and used and enjoyed the profits, emoluments, rights and privileges of said office, in contempt of the constitution, contrary to the form of the statute, and against the peace and dignity of the state of Ohio.
    To this information the defendant has filed his plea, taking issue upon the usurpation charged. And in bar, he avers that, on the 6th day of June, 1840,.the office'of clerk of the court of Common Pleas was vacant by the decease of David Gibbs, the former clerk of said court, and that he, the defendant, was duly appointed to said office by the court of Common Pleas of said county, at a regular term thereof, holden on the said 6th day of June, 1840, for the constitutional period of seven years, from and after the date of said appointment; and was duly qualified as such clerk, as by the journal, records and proceedings of said court will appear; and, in virtue thereof, on the 6th day of June, and from thence, used and exercised the said office of clerk of the court of Common Pleas of Huron county ; and claims to' be the legally appointed clerk thereof, 'and prays that said office may be adjuged to him, eto.
    
      To this plea, in bar, a replication has been filed, in which it is, •among other things, denied that the defendant was, on the said *6th [j7 June, duly appointed and qualified as clerk of the court of Common Pleas of Huron county; but it is averred, that the defendant was nsurpingly and unlawfully placed in the office of clerk by Ozias Bowen, President Judge, Timothy Baker, his associate, and George W. Choate and Benjamin Somers, who usurped, intruded into, and unlawfully exercised the offices of Associate Judges of said Huron ■county, on the 6th day of June, aforesaid, and in the appointment of defendant.
    Other matters are embraced in the replication. Amongst these, the •facts are set out, from which the conclusion is drawn that Choate and Somers were not, on the 6th of June, aforesaid, when the appointment of Clerk was made, judges of the court of Common Pleas of Huron -county. These facts will be found in the case of the State of Ohio, ■on the relation of Ives and Sears, v. Choate and Somers, 11 Ohio, 511.
    To this replication the defendant has demurred.
    D. Higgins, for the Relator.
    The rule, that the official acts performed by officers, de facto, shall be sustained, is a rule, not of strict right, but of policy. For the details of investiture, and the regularity with which a person has acceded to official station can not be investigated by every one who has affairs to transact with an official functionary ; and it becomes necessary for those who appear, de facto, to be officers, to be accounted such until the defect in official title is manifested.
    The rule is founded upon the consideration that such officers have some colorable title to the office. They suppose themselves rightfully invested, and act in good faith. But upon investigation, it is found that the person has not been legally invested with official authority.
    His acts, from that time f,rth, must cease to possess the characteristic of legal validity, while those previously performed are recognized IB] as valid and legal from motives of policy. * But in this case, there is presented by Somers and Choate no such colorable claim to the office of Associate Judges as to render their usurpation at all •doubtful, or to leave any hesitation in the mind that they acted in bad faith, and with full knowledge that they were doing wrong. They were not judges, de facto. The act of the General Assembly, setting off the i.erritory, in which Choate and Somers resided, to Erie county; their continued residence therein ; the declaration of the vacancy, by joint resolution of the General Assembly; the election of Ives and Sears, Associate Judges, to supply that vacancy ; and their commissions and the record of their qualifications, were public acts, notorious, and such as all were bound to take notice of.
    These judges, Choate and Somers, had no more right, therefore, to sit and constitute a quorum of the court, than would have had any other strangers.
    I have supposed this to be the law about officers, de facto: the moment that the official authority is questioned, your officer, de facto, acts at his peril. In order that his acts may be sustained, they must be performed without his authority being questioned.
    Every fact shows that Choate and Somers acted at their peril; that their right to the office was contested ; and, therefore, acting with full knowledge of their want of authority, their acts ought to be considered void.
    Boalt and Worcester, for defendant.
    Two questions arise upon the replication and demurrer:
    First: Did the offices of the judges, Choate and Somers, become vacant by the setting off the territory, in which they resided, to the eounty of Erie ?
    Second: If they did, was not the appointment of the defendant, while they were judges, de facto, good ?
    For an argument upon the first point, the court are referred to the argument in the eases of informations of quo warranto, filed against the judges themselves.
    *The second point presents the question whether the appoint- [19 ment of the defendant Ailing, by the judges constituting the court of Common Pleas, de facto, is not good.
    On this point we refer the court to the following cases :
    The People v. Collins, 7 Johns. 549. McInstry v. Tanner, 9 Johns. 135. 7 Cowen, 402. Fowler v. Beebe, 9 Mass. 231. Riddle v. Bedford County, 7 Serg. and Rawle, 386, Parker et al. v. Loughborough, 10 Serg. and Rawle, 249. Jones v. Gibson, 1 N. H. 268. Johnson v. Wilson, 2 N. H. 208. Moore v. Graves, 3 N. H. 408.
    The ease of Taylor v. Skinner, 2 S. C 696 ; and 7 Abr. and Amer, C. L. 142, was a motion to set aside an execution, on the ground that the decree from which it issued was passed by a chancellor, whose appointment was invalid. After the rendition of the decree, the appointment of the judge was brought before the court for adjudication, and it was pronounced bad ; but the court say, that the judge acted under color of office, in passing the decree ; and, being an officer, de facto, his act, as such, could not be objected to.
    
      The rule applies equally to ministerial as to judicial officers, as may be seen by the above references.
    Fowler v. Beebe, 9 Mass. 231, was an action wherein the defendant-plead in abatement, that the writ in that suit was served and returned by a deputy of one Smith, the sheriff of the county of Hampden, in Massachusetts, and that the sheriff was appointed by the Governor of the State, when no such county or office was in existence. Parsons, J ustice, decided that Smith was sheriff, de facto ; and that they could not declare void each act of his, as such, in cases where he was not a party, and where the interests of third persons were drawn in question. Smith was afterwards ousted from his office of sheriff of Hampden, on the same state of facts ; 10 Mass. 290.
    Here, the appointment is sought to be invalidated because the court was not properly constituted; but the rule applies in all cases, except. 20] when the question comes up between the * State and the parties usurping the office; 7 Serg. and Rawle, 386; and here the defendant is a third person, in respect to that act.
    The circumstance, that the act we are now inquiring into consisted of the exercise of the duties of the offices of the judges, as a court of Common Pleas, in making the appointment in question, instead of rendering a judgment or decree, or doing any other act that they might do as a court, does not distinguish this case, in principle, from those above referred to. If it did, then it would, upon the same principle, be competent for the court to nullify each act of the court of a like nature, in detail, without giving the officers an opportunity to' be heard; and Ailing’s acts, as clerk, could be impeached in the same way. They also cited Alderman Purdy’s case, 2 Hill, 32.
    Peter Hitchcock also submitted an argument on the same side.
   Wood, Judge.

This court held, in the ease of the State v. Choate, 11 Ohio, 511, that Choate and Somers were not judges of the Court of Common Pleas of Huron county, de jure, when this appointment of clerk was made. The only question raised by this demurrer, is, whether such appointment, when conferred by judges, de facto, and who are not such of right, is legal and valid. Many authorities are cited by the defendant’s counsel to establish the validity of the acts of officers, de facto, both ministerial and judicial ; and we hold that, so far as the community, or third persons are concerned, neither the validity of the appointments or judgments of a court, de facto, can be gainsayed or denied.

It is, however, insisted by the relator, that Choate and Somers were not judges, de facto, but usurpers and intruders, and assumed the judicial functions without any color of right or office.

We think differently. They had been long, previously, judges de jure. They were ejected from office by a legislative act, dividing Huron county, and by their continued residence within the new organization ox Erie county. They hall beeji commissioned *for the con- [21. stitutional period; and until the question was decided by this court, it may have well been doubted whether Choate and Somers did not continue judges, de jure, of the Huron Common Pleas, after the passage of the aforesaid act, and their continued residence in the new organization.

At all events, they held commissions, and were acting under color of office; and as to the public, or individuals, their acts must be held, valid. Judgment will, therefore, be given for defendant, on the demurrer.

Judgment accordingly.  