islature could not alter.1 In the case of the circuit judges of that State, there was no provision in the constitution that at certain ascertained regular periods such a judge should go out of office; nor was there any impairment of the provision that circuit judges should hold for the defined length of time; consequently it made no difference that a judge was elected to that court to fill a vacancy, he was entitled to serve the full constitutional period.2 In one case the intent of the constitution to fix unalterably the beginnings of terms was presumed where the provision was for election on expiration of any "term of office."3 The Ohio constitution in its provision that vacancies should be filled for the unexpired terms, was held not to apply to the case of a probate judge, who, after a futile election in the regular year which resulted in a tie, was the next year elected. His term was for the full period beginning with his actual time of succeeding to the office. But authority contrary is given in the note.5 Provision for choice at "next election by the people," was construed to mean the next election after a vacancy happened.6 Where the office is one created by the general assembly, that body may prescribe the period of service by officials appointed to fill vacancies. It is usually held that temporary appointments may be made to the constitutional courts, until resort to the regular and ordinary mode of election or choice of successor.8 Weeden, 77 Va. 704; Watlington v. Edmondson, 10 Va. L. J. 286; Jameson v. Hudson, 82 Va. 279; Smith 7. Halfacre, 6 How. (Miss.) 582; State v. Askew, 48 Ark. 82, 90. 1. Simpson v. Willard, 14 S. Car. 191; Burks v. Hinton, 77 Va. 1, 15; State ex rel. Shaw v. Ware, 13 Oreg. 380; Jameson v. Hudson, 82 Va. 279; Broadus, 32 Gratt. (Va.) 779, 784. 2. Whipper v. Reed, 9 S. Car. J. Opinion of Justices, 61 Me. 601. See also People v. Green, 2 Wend. (N. Y.) 266, 273. In re Tenure of Office of Judges, 16 Fla. 841; State v. Johns, 3 Oreg. 533; People v. Weller, II Cal. 77. 3. Baker, Governor, v. Kirk, 33 Ind. 517. Compare State v. Ware, 13 Oreg. 380; People v. Mott, 3 Cal. 502. 4. State ex rel. Maffett 7. Ohio, 7 Ohio St. 372. See Comm. v. Hanly, 9 Pa. St. 513. Death of elected clerk before qualification creates no vacancy if the holding over rule exists. See note 3, p. 21. 5. But in Kansas, where the constitution was construed to require elections of judges at regular stated intervals of four years each (State v. Thoman, 10 Kan. 191), it was held that in the case of an omission to elect, postponing choice for a year, the judge then elected took only for the term which began at the period following the proper election time; so that instead of four he had only about three years to hold the office. Peters v. Board of StateCanvassers, 17 Kan. 365. Total failure to give notice of pending election to voters of one county, held to annul the vote in the entire judicial district. Barry v. Lauck, 5 Coldw. (Tenn.) 588. 6. Casus Omissus.-On a failure to elect circuit judge, being due to the non-age of candidate, and not owing to a tie vote, and there existing no provision in the constitution for new election in such a case, held, that the governor's appointee should hold until his time should expire by virtue of another provision, viz: that in vacancies the appointee should hold till next general election or his successor should be appointed. Magruder . Swann, 25 Md. 173, 213. 7. State v. Chapin, 110 Ind. 272. Compare Cline v. Greenwood, 10 Öreg. 230. 8. Kelley . Edwards, 38 Mich. 210. See also State v. Glenn, 7 Heisk. (Tenn.) 472. But see Cohen 7. Huff, 2 Treadw. Cons. (S. Car.) 657. See generally Barry v. Lauck, 5 Coldw. (Tenn.) 4. De Facto Judges.-An officer de facto is one who exercises the duties of an officer under color of an appointment or election to that office, or who has the reputation of being the officer he assumes to be. He differs, on the one hand, from a mere usurper of an office, who undertakes to act as an officer without color of right; and on the other, from an officer de jure, who is, in all respects, legally appointed and qualified to exercise the office.1 The rights and powers of a judge de facto can only be enquired into by suit to which he is a party, i. e., by quo warranto, at the suit of the commonwealth.2 The rule extends to all officers, executive and judicial. It applies alike to questions of the validity of the original election or appointment, and to questions whether the commission or authority has expired by its own limitation or by the acceptance of an incompatible office. The judgments of a judge de facto are valid and binding.4 A judge's judgment or jurisdiction cannot be attacked collaterally, by writ of error or appeal therefrom, based on the want of title; 5 588; Gaines v. Horrigan, 4 Lea (Tenn.) 1. See DE FACTO OFFICERS, vol. 5, Unconstitutional Appointment.-Taylor v. Skrine, 3 Brev. (S. Car.) 516; Brown v. O'Connell, 36 Conn. 432; State v. Douglass, 50 Mo. 593; Morris 7. People, 3 Den. (N. Y.) 381; Cooley Cons. Lim., § 599, note. v. Unconstitutional Statute.-State Messmore, 14 Wis. 164; State v. Bloom, 17 Wis. 521; People v. Bangs, 24 Ill. 184; Clark v. Com., 29 Pa. St. 129, 137. And see State v. Alling, 12 Ohio 16. Compare Hildreth v. M'Intire, 1 J. J. Marsh. (Ky.) 206. 2. Com. v. Burnell, 7 Pa. St. 34; Clark v. Com., 29 Pa. St. 129, 137; Chesapeake etc. Canal Co. v. Baltimore etc. R. Co., 4 Gill & J. (Md.) 1; 10 B. & C. 230; 11 Ad. & E. 949; People v. White, 24 Wend. (N. Y.) 520; Cocke v. Halsey, 16 Pet. (U. S.) 71, 87. Whether the holding by the judge of another official position disqualifies him as judge by reason of incompatibility cannot be tried on appeal by a convicted person. Com. v. Taber, 123 Mass. 253. Nor on habeas corpus. Sheehan's Case, 122 Mass. 445. 3. Sheehan's Case, 122 Mass. 445. Judges Appointed by Military Authorities.-Quinn v. Com., 20 Gratt. (Va.) 138; Griffin v. Cunningham, 20 Gratt. (Va.) 31. Commissioner.-Fitchburg R. Co. v. Grand Junction R. & D. Čo., 1 Allen (Mass.) 552. 4. Carli v. Rhener, 27 Minn. 292; State v. Douglass, 50 Mo. 593; State v. Carroll, 38 Conn. 449; State v. Lazarus, 33 La. An. 1425, 1433; Taylor v. Skrine, 2 Treadw. Const. (S. Car.) 696; McCraw v. Williams, 33 Gratt. (Va.) 510; Ostrander v. People, 29 Hun (N. Y.) 513; People v. White, 24 Wend. (N. Y.) 520, 526; State v. Gleason, 12 Fla. 191; Nashville v. Thompson, 12 Lea (Tenn.) 344, and Tennessee cases cited; Milward v. Thatcher, 8 T. R. (Eng.) 81, 87; Andrews v. Linton, 2 Ld. Raym. (Eng.) 884, 885; Clark v. Com., 29 Pa. St. 129; Sheehan's Case. 122 Mass. 445, 447. See also Brown v. Lunt, 37 Me. 423; Petersilea v. Stone, 119 Mass. 465; Cocke v. Halsey, 16 Pet. (U. S.) 71, 87. 5. People v. Bangs, 24 Ill. 184; Com. 7. McCombs, 56 Pa. St. 436; Clark v. Com., 29 Pa. St. 129, 138; Sheehan's Case, 122 Mass. 445; Com. v. Taber, 123 Mass. 253; Andrews v. Linton, 2 Ld. Raym. 1884; Milward v. Thatcher, 2 T. R. (Eng.) S1, 87; McGregor 7. Balch, 14 Vt. 428; Coolidge v. Brigham, 1 Allen (Mass.) 333; Keith v. State, 49 Ark. 439; Ex parte Strang, 21 Ohio St. 610; Ex parte Johnson, 15 Neb. 512; In re Whiting, 2 Barb. (N. = nor by habeas corpus.1 Of course, as against the commonwealth, a person not entitled cannot claim; he cannot sue for salary.2 It has been doubted in Massachusetts whether the rule protecting judges from liability applies in favor of a de facto judge of an inferior court, but in Connecticut a superintendent of wharves acting quasi judicially was said to be within the rule, though only a de facto officer.4 The doctrine of de facto judges has been said to have no application where there is already an incumbent of the office.5 The authority of special or substitute judges is sustained, not on the de facto rule, but because they are for the time being lawful judges in the courts wherein they sit.6 V. SPECIAL JUDGES: SUBSTITUTION-1. Definition.-A special judge is a member of the bar appointed or chosen to preside in the place of the regular judge, owing to the latter's absence, disqualification, or other cause; or he is a judge of another court, called in for such reasons, and is then more generally styled, perhaps, substitute judge. 2. Powers and Duties (a) Constitutional Law.—Very broad ground was at first taken in Alabama. There the court alluded to the rule that constitutional provisions relating to legislative Y.) 513; Pepin v. Lachenmeyer, 45 1. Habeas Corpus.-Sheehan's Case, 3. Sheehan's Case, 122 Mass. 445; Morris v. People, 3 Den. (N. Y.) 381, 388. Compare infra, section 8. 4. Gregory v. Brooks, 37 Conn. 365. 5. Morriss v. Virginia Ins. Co. (Va.), 8 S. E. Rep. 383; Keith v. State, 49 Ark. 439, 446. After Qualification of Successor.-Yet a judge still acting as such in ignorance of his successor's having qualified was held judge de facto. Carli v. Rhener, 27 Minn. 292. 6. Morris v. Virginia Ins. Co. (Va.), 8 S. E. Rep. 383; Keith v. State, 49 Ark. 439, 446. Where the record shows a proper case for appointment of a special judge the court of appeals will not go back of the commission to examine the clerk's certificate. Kennedy v. Com., 78 Ky. 447. In Kansas, in an action on an Alabama judgment, the court said that the record showing appointment in the lawful mode of a special judge, they would be bound by the judgment rendered by him, as he was at least a special judge de facto. Hunter v. Ferguson, 13 Kan. 462, 475. In States where such temporary official is not recognized, he cannot have color. Hoagland v. Creed, 81 Ill. 506; State v. Fritz, 27 La. An. 689. But where he can have color, his right cannot be questioned collaterally. Guilbeau v. Cormier, 32 La. An. 930; State v. Murdock, 86 Ind. 124; Adams v. Gowan, 89 Ind. 358. Even in States where consent may vest jurisdiction in special judge, the question as to the authority of a special judge acting under color of a temporary appointment may be raised in the action tried before him if made promptly and in a proper method. Cargar v. Fee, 119 Ind. 536, 538; Smurr v. State, 105 Ind. 125; Schlungger v. State, 113 Ind. 295; Bartley v. Phillips, 114 Ind. 189, and cases cited; Greenwood v. State, 116 Ind. 485; Littleton v. Smith, 119 Ind. 230; Harman v. Moore, 112 Ind. 221. The court will, in appeal from conviction before a justice, consider evidence bearing on the question whether or not the official was at least a de facto officer. People v. Terry, 108 N. Y. 1. power are not grants, but limitations to be strictly construed,1 and held that the implied restriction upon the legislative power to erect and regulate courts, contained in the declaration that the judicial power shall consist of a supreme court, a circuit court, etc., and that judges of such circuit courts should be elected, did not extend to the case of trials in such circuit courts, which the regular judge should decline, or be incompetent, to try. As to such emergencies the innate power of the legislature continued unrestrained,2 and decisions very similar have been made elsewhere. But in a later Alabama case,3 constitutional provision for election of judges was held to prevent statute compelling selection or appointment of special judges in case of the incompetency of the presiding judge from interest or relationship—although provision in statute for sitting as arbitrator and allowing appeal to supreme court, was upheld. The later decision against appointment of special judges accords with rulings in Illinois and Iowa.5 In some States constitutional provision for substitution of judges from other courts has been held to forbid statute allowing appointment of attorneys as special judges; but such provision does not apply to courts erected by the legislature.6 Where the constitution prescribes a mode of selection of a substitute or special judge and indicates the causes which will justify such selection, it excludes other modes of selection, and other causes.7 In Oregon, it was ruled that objection that the judge was not authorized to sit cannot be considered in the appellate court unless made in the court below. State v. Whitney, 7 Oreg. 386. As to incompetency from disqualification, see DISQUALIFICATION. 1. Citing Fletcher v. Peck, 6 Cranch (U. S.) 87; Golden v. Prince, 3 Wash. (U. S.) 313. 2. Compare supra, this title, VACANCIES IN OFFICE. Upholding Alabama Rev. Code, section 758, providing for special judges. Alabama etc. R. Co. v. Burkett, 42 Ala. 83. And see Holly v. Carson, 39 Ala. 345. See also Grinstead v. Buckley,.32 Miss. 148; Henderson v. Pope, 39 Ga. 361; People v. Petty, 32 Hun (N. Y.) 443. See also miscellaneous decisions in State v. Snodgrass, 4 Nev. 524; People v. Gallagher, 75 Mich. 512; State v. Williams, 14 W. Va. 851; Clark v. Rugg, 20 Fla. 861; Bear v. Cohen, 65 N. Car. 511. 3. Ex parte Amos, 51 Ala. 57 (1874). 4. Hoagland v. Creed, 81 Ill. 506. 5. Winchester . Ayres, 4 Greene (Iowa) 104. 6. Harper v. Jacobs, 51 Mo. 296; Smith v. Haworth, 53 Mo. 88. See Held also that the fact that as to one In Mississippi, the court intimated very strongly that the constitutional provision for calling in of the judge of another circuit would prevent the passage of any statute allowing agreement for selection of an attorney as special judge. Peter v. State, 6 How. (Miss.) 326. Reference may be made to a master or referee. Underwood v. McDuffee, 15 Mich. 361; Hards v. Burton, 79 Ill. 504. But the referee shall not have power of final decision. Johnson v. Wallace, 7 Ohio 392; King v. Hopkins, 57 N. H. 334; St. Paul etc. R. Co. v. Gardner, 19 Minn. 132; s. c., 18 Am. Rep. 334. 7. State v. Phillips, 27 La. An. 663; State v. Frank, 27 La. An. 689; State ป Where the constitution authorizes legislative provisions for special judges in certain courts, if part of the jurisdiction of one of those courts be given in its relief to a newly erected court, the legislature may provide for special judges in the new court.1 (b) Limitations of Powers.-Trial before a special judge is not to be regarded in the light of an arbitration. Writ of error or appeal may run to the court in which he sat. His judgment is the judgment of that court. Nevertheless, a judge pro tem is only a substitute, not a duplicate judge,3 so that in jurisdictions where the law intends that only one judge shall sit at a time in a county, the regular and special judge cannot both hold courts at the same time in the same county." Special as well as regular judges may sign bills of exceptions. after term time.5 (c) When Special Judges Can Act.-Proceeding by an administrator for sale of real estate; 6 divorce proceeding; proceeding supplementary to execution; 8 motion for receiver;9 action involving the judge's right to office;10 settlement of bill of exceptions ;11 -such are civil actions in the sense that a party may have a change. of judge on proper application. Where a special judge already chosen for the term of the court v. Judge, 9 La. An. 62; Hayes v. Hayes, 8 La. An. 468. Provision that recused judge, who is not personally interested, may appoint a lawyer in his stead, and when interested may call on district or parish judge, excludes the idea of a sick judge so doing. State v. Fritz, 27 La. An. 689; State v. Phillips, 27 La. An. 663. It was held, in Georgia, that provision authorizing substitution in superior court did not prevent legislation authorizing litigants to select an attorney in place of the disqualified judge. Henderson v. Pope, 39 Ga. 361. See also State v. Williams, 14 W. Va. 851. Provision that legislature may provide for special judges authorizes statute allowing selection by the bar. Ligam v. State, 3 Heisk. (Tenn.) 159; State v. Williams, 14 W. Va. 851. Or by the governor. Kennedy v. Com., 78 Ky. 447. And statute allowing election by the bar is applicable although one of the parties does not consent to the choice. Smith v. Blakeman, 8 Bush (Ky.) 476. 1. Rudd v. Woolfolk, 4 Bush (Ky.) 555. 2. Henderson v. Pope, 39 Ga. 361; Alabama etc. R. Co. v. Burkett, 42 Ala. 83. See also Taylor v. Smith, 4 Ga. 133; Walton 7. Bethune, 37 Ga. 319; Vischer v. Talbotton etc. R. Co., 34 Ga. 536; Case v. State, 5 Ind. 1. 3. Cox v. State, 30 Kan. 202; Cooley Cons. Lim. 399. 4. In re Millington, 24 Kan. 214; Tarpenning v. Cannon, 28 Kan. 665; Haverly etc. Mining Co. v. Howcutt, 6 Cal. 574; Clark v. Rugg, 20 Fla. 861; Bear v. Cohen, 65 N. Car. 511. 5. Watkins v. State, 37 Ark. 370; Cowell v. Altchul, 40 Ark. 172; Bacon v. State, 22 Fla. 46. 6. Scherer v. Ingerman, 110 Ind. 428.. See also Lester v. Lester, 70 Ind. 201. 7. Powell v. Powell, 104 Ind. 18 (lim- 8. Burkett v. Holman, 104 Ind. 6. 27. で。 Berry, 83 N. Car. 10. Magruder v. Swann, 25 Md. 173; Nugent v. Stark, 34 La. An. 628; State v. Judge, 33 La. An. 1293. 11. Gowden v. Wilson, 21 Fla. 165;. Florida Code 165. ! |