Page:Federal Reporter, 1st Series, Volume 5.djvu/920

908 FEDERAL REPORTER. �an officer de factû who enters upon or Iiolds an office under a void law or illegal appointment, bu,t that he is only an in- truder ; (2) that to make one an officer de facto he must appear to have entered upon the office under a legal election or ap- pointment — under color of right ; (3) that a person cannot be considered an officer de facto unless the office he is said to be in legally exista; and there being no such office as "circuit judge" or judge of the circuit court established by the consti- tution, the person who acted as judge on the trial of the peti- tioner in the court below was not even a de facto judge ; and (4) that an appointment cannot give color of right to enter and hold an office which is elective, and vice versa, and there- fore the person who acted as judge of the circuit court in ■vrhich the petition was tried was not a judge de facto. Upon the latter point council cite People v. Kelsey, 34 Cal. 475; People V. Albertson, 8 How. P. E. 363; Brown v. Blake, 49 Barb. 9. �In the first of these cases the court held that the constitu- iion of the state having made the office of tax coUeotor elect- ive, the legislature had no power to provide for ifcs being filled by 'appointment, nor to confer the duties thereof upon an office filled by appointment. But theire the question arose in a direct proceeding to try the right to an office, while here it arises in a collateral onç to determine the legality of an act done by a person while in office. Upon. the question of the power of the govemor to appoint a judge, when the con- stitution only provides for his election, it is in point. But it bas no bearing upon the question whether a person so ap- pointed is a judge de facto or not. �The second case is a direct authority for the proposition that "an officer de facto is one who acts under color of title, which color can only be given by power having authority to fiU the office;" in other words, that an appointment to an elective office does not give color of title to the appointee, and vice versa. The opinion is plausible; but no authorities are cited, and, so far as appears, the distinction attempted to be made by it is not found in the books. The case was decided in the county court, and the opinion delivered by the et unty ����