Page:Federal Reporter, 1st Series, Volume 5.djvu/924

 912 FBDBBÀL BEPOBTEB. �on the other from an officer de jure, who is in ail respects legally appointed and qualified to exercise the office." �In Brown v. O'ConneU, 36 Conn. 451, an officer de facto was defined to be "one who bas the color of right or title to the office he exercises, — one who bas the apparent title of an officer de jure" and in Brown v. Lunt, 37 Maine, 428, as "one who actually performs the duty of an office witb apparent right, and under claim and color of an appointment or an election." �Ex parte Strang, 21 Obio St. 610, is a case directly in point, and decides expressly what some of the foregoing cases do by necessary implication, that an unconstitutional act will give color of right to an appointment made under it. The case was this : A statute authorized the mayor of Cincinnati, in the absence or disabiHty of the police judge, to appoint a temporary substitute. In pursuance of this authority the mayor made sucb an appointment, who, in the discharge of the duties of the office, committed Strang to prison for the non-payment of a fine. The prisoner sued' out a habeas cor- pus, and on the argument it was claimed in bis behalf that the statute was oontrary to the constitution and void. The court held that, admitting the act to be void, yet the ap- pointee of the mayor was a judge de facto, saying: "The direct question in this case is whether the reputed or color- able authority required to constitute an officer de facto can be derived from an unconstitutional statute. The claim that it cannot seems to be based upon the idea that sucb authority can only emanate from a person or body legally competent to invest the officer witb a good title to the office. We do not understand the principle to be so limited. We find no au- thorities maintaining sucb limitation, while we find a num- ber holding the contrary. 9 Mass. 231 ; 10 Mass. 290. The true doctrine seems to be, that it is sufficient if the officer bolds the office under some power having color of authority to appoint; and that a statute, tkough it ahould befound repug- nant to the constitution, vM give such color." In support of this conclusion the court cites Taylor v. Skrine, 3 Brevard, 516; Brown v, O'ConneU, 36 Conn. 432; The State v. Mess- ����