The weekly miner. [volume] (Butte, Mont.) 1878-1881, 1880-01-20

WHICH IL Is necessary he should perform"
In Brown VS.. Lunt, 81 Me-, 42S, the Court
says that an officer de fdcto is: "One who
"actually performs the duties of an office
with apparent right under claim or color of
appointment or election. He is not an off
seer de juTe, because not in all respects quail
" fed and authorized to exercise the office d;
nor 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 .fdctO. There
"must be at least 4 fair color of right or an
: acquiescence by the public in his official acts
$50 long that he may be presumed to act as
ian officer by the right Of election or appoint
ment."
These authorities proceed upon the hypoth-
esis that the office to which the officer is ap-
pointed or elected is a legal and constitutional
office. The office must be de jure while the
officer may be de tdct0.
The Town of DEBORAH VS.. Bulls, 25 Ia, II.
1t was not questioned at the bar, and it CAN
not we'll be doubted that the Legislature has
authority under the Organic Act to establish
the Office of justice of the peace for the town
or city of Butte. Being legally constituted, it
thereby became an office that might be filled
by a de tactO officer, and the magistrate who
issued the warrant of commitment herein,
having been appointed to his office hv virtue
of q statute III full force, holds the same by
color of law, and thereby becomes as lie fdcto,
If not a dc jore officer. And, even if the law
under which the appointment was made was
unconstitutional, it would give color to the
appointment, and the officer appointed by
virtue thereof would become a dc tacto off
GER.
"TJe true doctrine,' says the Court in
Exparte Strany, 81 Ohio ST., G1S, "seems to
"be that it is sufficient if the officer hold the
"otilce under some power having color of ALL
"thority to appoint; and that a~statute, though
"it should be found repugnant to the Consti
%"tution, will give such color"
See also the following authorities cited III
the foregoing case:
Taylor VS.. Shrine, 3 Brevard, SIG.
Brown VS.. OConnell, 36 Conn.,, 1872.
The State er rel. Attorney General VS.. Mes
simore, ID Wis, 1874.
State VS.. Bloom, II Wis.,, 521.
The People eI rel. Ballow VS.. Bangs, a
ILL.,, 1S4.
Hhe office of the police magistrate and JUS
tice of the peace having been legally estab-
lished in the city of Butte, and the officer hay
ing been appointed thereto by virtue of a
public act Of the Legislature in full force,
thereby became a de facto officer, even though
the law authorizing the appointment We're re-
pugnant to the act of Congress and the Or
ganic laws.
If the magistrate was an officer de facto his
judgments will be as unqlestionable in the
collateral proceeding by habeas corpus as if
he were a magistrate de jure.
EXparte Strany, 81 Ohio St., &c.
If he holds his office by color of right,
though he is not an officer de jure, his right
will not be e%nquired into III ha5eas corpus.
His title can only be determined in a direct
proceeding instituted for that purpose.
There seems to be no conflict in the author
tiles upon this proposition.
See EXparte Strahl, 1G Iowa, 800.
The People VS.. Sassovich, 20 Cal, 4S5, and
authorities cited.
The Town of Lewiston vs.. Proctor, % ILL.,,
533.
Douglass VS.. Wickwire, 10 Conn, 4S9.
Facey VS.. Fuller, - Mich, 527.
Bean VS.. Thompson. 10 N. H., POO.
Commonwealth VS.. McCombs, Sc Pa. 81,
1876.
ESparte Patrick Murray, d Cal, 455.
Application for discharge is therefore de
MED, and the prisoner %remanded.
D.. S. WADE, Chief Justice.
HENRY \. BLAKE, Asso. Justice.
WIN. G. G~AIBRAITH, AssO:Justice
Filed and entered January It'll, 1880.
|. X. ALDEN, Clerk.
y true copy.
Attest with my official seal affixed, this 18th
day of January, 1880.
[SEAL-1 /. X. ALDEN, Clerk.