Ridout v. State

Appealing from a conviction for voluntary manslaughter, plaintiff in error challenges the validity of the indictment on the ground that the trial judge was not qualified to act on the day when he organized the grand jury. Certain other errors assigned have been considered, but found without merit, and this opinion is confined to the single question above stated.

The terms of the Shelby County Criminal Court, three a year, open on the third Mondays of January, May and September. Unless earlier adjourned each term runs until the opening of the succeeding term.

It appears that the regular judge was "absent on account of illness" on the 12th day of December, 1928, and on that day an election by the members of the local bar in attendance was duly held and the Honorable Phil Wallace was regularly elected, pursuant to section 5730 of Shannon's Code (Acts of 1870, Chap. 78), to preside during the absence on account of illness of the regular judge.

On the 16th day of the following month, January, Judge Wallace, continuing to preside during the absence of the regular judge, opened the January term of the court without objection and empaneled and instructed the grand jury, which was duly sworn and later returned the indictment in this case. At a later day, in March following, the trial was had by a jury regularly empaneled and sworn and before a judge whose right to preside at that time is in no way questioned. The validity of the indictment only is attacked and this attack is directed and confined to the insistence that the authority of Judge Wallace to sit and act instead of the regular judge expired with the closing of the September term during which he had been elected, and that indictments returned by the grand jury thus unlawfully empaneled and instructed are void.

The pertinent parts of Section 5730 of Shannon's Code read as follows:

"When, from any cause, the judge of any court of record in this State, except the Supreme Court, fails to attend, or, if in attendance, cannot properly preside in a cause or causes pending in such court, or is unable to hold the court, a majority of the attorneys of the court who are present and are residents of the State, shall elect one of its [their] number then in attendance to hold the court for the occasion, who shall have all the qualifications of a judge of such court, and who shall accordingly preside and adjudicate.

"(2) The person elected shall, during the period that he acts, have all the powers, and be liable to all the responsibilities, of a regular judge."

It will be seen that the special judge so elected is "to hold the court for the occasion," and that "the person elected shall, during the period that he acts, have all the powers, and be liable to all the responsibilities, of a regular judge." The "occasion," or contingency, which arose in the instant case, justifying an election under the statute, was the absence on account of illness of the regular judge. "Occasion" is defined as "a condition of affairs;" or as "a juncture entailing need;" an "exigency," or "a juncture affording ground or reason for something."

The constitutionality of the statute above quoted was passed upon and approved in the early cases of Ligon v. State, 3 Heisk., 159, Hundhausen v. Insurance Co., 5 Heisk., 703, andHalliburton v. Brooks, 7 Baxt., 318. It was recognized in those cases that the intention of the legislature was to make provision for filling a vacancy in an office during the temporary absence or disqualification of the regular judge only, it being contemplated that the authority of the special judge thus elected would expire with the expiration of the occasion or exigency calling for his election. And, in this connection, in the Ligon case Judge FREEMAN remarked: "We can see no objection to making this appointment by the members of the Bar. It no more contravenes the ``principle' of universal suffrage and election of all officers by the people, as insisted by counsel, than would an act of the legislature which should provide for the appointment of a person to hold the court by the Governor. The members of the Bar are interested in selecting the best man for the place, and certainly are better qualified to judge of the fitness of the party who may be selected by them, than the Governor of the State, who may know nothing on the subject." And in the Hundhausen case he said, "we can see no better mode of meeting the exigency than the one provided by the statute." And so Judge DEADERICK, in the Halliburton case, commented to the same effect.

In Harris v. State, 100 Tenn., p. 287, it was held that a special judge selected under this statute to preside in the absence of the regular judge may try and dispose of criminal, including capital cases, as well as civil cases.

This Court in Low v. State, 111 Tenn. 81, held that the authority of a special judge chosen under this statute expires with the particular term of court during which he is elected. It is insisted that the language of that opinion in giving construction to the word "occasion" comprehends every case of election under this statute, and that upon that authority the power of Special Judge Wallace to act ceased with the September term, and that his action in organizing the grand jury on the opening day of the following term was void.

Just here, as emphasizing the vital importance of the issue presented, it is significant that the grand jury organized under the direction of this presiding judge returned not only the indictment in the case at bar, but a great number of others, and that this same judge presided at the trial of numerous cases, resulting in convictions on the one hand and acquittals on the other, his authority being recognized without question or objection by the Bar, the litigants, court officials, including the regular judge, and the public.

Now, conceding that the election of this special judge was for the September term only, and that when, on the opening day of the succeeding term, he organized the grand jury, his term of office had expired, was he not, while thus holding over, in good faith believing himself to have continuing authority, and acting with general acquiescence and with all the indicia of reputation, a judge de facto, and his acts therefore beyond collateral attack by those third parties affected?

The general definition of an officer de facto, as expressed by Lord Ellenborough in Rex v. Bedford Level, 6 East 356, is "an officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law." This definition has been generally approved in this country and in England. Bouvier defines de facto, "in fact; actually; indeed." Another brief definition given by the Supreme Court of Wisconsin, is, "A de facto officer is one who is in possession of an office, and discharging its duties under color of authority." State v. Oates, 86 Wis. 634. And that court adds: "By color of authority is meant authority derived from an election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer."

In Wright v. Mattison, 18 How., 50, 15 L.Ed., 280, color of title is defined to be that which "in appearance is title, but which in reality is no title." The difference between the basis of the authority of a de jure officer, and that of a de facto officer is that one rests on right, the other on reputation. It may be likened to the difference between character and reputation. One is the truth of a man, the other is what is thought of him. Mr. Justice MARSHALL, in his learned opinion in Ekern v. McGovern, 154 Wis. 157, 142 N.W. 595, 46 L.R.A. (N.S.), 796, declares the American view to be, that it is color of authority, not color of title, which distinguishes an officer de facto from a usurper, citing cases, and Throop Pub. Off., Sec. 623 and Mechem Pub. Off., Sec. 317. And the modern rule treats "color" as the equivalent of appearance only, without reference to source.

In Heard v. Elliott, 116 Tenn., at page 157, Mr. Justice NEIL approves and adopts this statement of the rule, laid down by the Supreme Court of Oregon in the leading case of Hamlin v.Kessafer, 15 Ore., 456, 15 P. 778, 3 Am. State Rep., 176, a case of holding over by a judge of an inferior court after expiration of his term: "The color of right which constitutes one an officer de facto may consist in an election or appointment, or in holding over after the expiration of one's term, or acquiescence by the public in the acts of such officer for such length of time as to raise the presumption of colorable right by election or appointment." We have italicised the alternative most directly applicable to the instant case.

In 22 R.C.L., 598, the rule is thus laid down:

"Where an officer under color of right continues in the exercise of the duties of the office after his term of office has expired, or after his authority to act has ceased, he is an officer de facto, although he has no right to hold the office as against the one rightfully chosen his successor."

To the same effect is 23 Cyc., pages 619-20.

In Am. Eng. Ency. of Law, VIII, page 796, treating of defacto Public Officers, under the sub-head "Holding Over," the rule is thus stated: "As a general rule, one who comes into office legally, and continues to hold possession of the office and exercise the functions and duties thereof after the term for which he was elected or appointed has expired, is an officer de facto." Supporting authorities are cited from many states, among them, Cary v. State, 76 Ala. 78; Hale v.Bischoff, 53 Kan. 301; Brown v. Lunt, 37 Me. 423;Petersilea v. Stone, 119 Mass. 465, 20 Am. Rep., 335;Magneau v. Fremont, 30 Neb. 843, 27 Am. St. Rep., 436;Dugan v. Farrier, 47 N.J.L. 383; People v. Kings County, 89 Hun (N.Y.), 38; Gilliam v. Reddick, 4 Ired. L. (26 N. Car.), 368; Kreidler v. State, 24 Ohio St. 22; Hamlin v.Kassafer, 15 Ore., 456, 3 Am. St. Rep., 176; Com. v. Waller (Pa. C. Pl.), 28 W.N.C. (Pa.), 252, 8 Lanc. L. Rev., 276, 48 Leg. Int. (Pa.), 312, 10 Pa. Co. Ct. Rep., 111; Galbraith v.McFarland, 3 Cold. (Tenn.), 267, 91 Am. Dec., 281. Also seePrescott v. Haynes, 46 N.H. 56, holding that the acts of a Justice of the Peace, although after removal, are valid as to third parties.

It will be observed that we have here no question as to the regularity and validity of the appointment or election at the September term of this special judge for the occasion of the illness of the regular judge, and that our statute expressly provides that one so elected, "shall during the period that he acts, have all the powers and be liable to all the responsibilities, of a regular judge." No distinction can therefore be taken between the hold over status of a regular judge and one thus elected. Nor is there room for the application of an exception sometimes made where one holds over under a claim of right after a successor has qualified and taken possession of the office, as in Steinback v. State, 38 Ind. 483. In the instant case the regular judge continuing ill had not resumed the bench and the exercise of the office. It is not a case of two judges in fact. One only was in possession for the time and exercising the functions of the office. Assuming that the regular judge had the right to resume the bench at the time in question, and thus terminate the holding and authority of the special judge, even as a judge de facto, he had not done so. The situation is analogous to those cases in which one holds over and conducts the office after the election and the term of his successor begins, until qualification of such successor. Examples of cases holding the hold over a judge de facto under such conditions are numerous, among them, Threadgill v.Carolina Cent. R. Co., 73 N.C. 178; State v. Lee, 35 S. Car., 192; Cook v. State, 91 Ala. 53; Magneau v.Fremont, 30 Neb. 843, 27 Am. State Rep., 436. To the same effect, with the single qualification, met in the instant case, that the judge holding over and acting did so in good faith, areCromer v. Boineet, 27 S.C. 436, and Merced Bank v.Rosenthal, 99 Cal. 39. To the same effect, applying those principles to the case of a notary, is Smith v. Meador,74 Ga. 416. This difference between a holding over in good faith, and one with knowledge of the expiration of the term, which latter situation has sometimes been held to justify the application of the usurper rule, is made the basis of determinative distinction in Missouri. Compare Fleming v.Mulhall, 9 Mo. App. 71, and State v. Perkins, 139 Mo. 106.

Reference is made to State v. Hart (Mont.), reported in 7 A.L.R., 1678, and to State ex rel. Van Amringe v. Taylor (N.C.), 12 L.R.A., 202, as supporting the theory of usurper, whose acts are void. The situations dealt with in those cases are essentially different from that before us. The Hart case is an illustration of the distinction generally recognized as vital between the right of one claiming recognition under the defacto rule to assert, on direct attack, his claim to hold the office, or to recover compensation, — and the right of third parties affected to question collaterally the validity of acts of a defacto officer. Holding in that case that the relator, who had been appointed to the legislature by the Governor contrary to constitutional provisions, "was at most a de facto officer," the court, denying his claim to recover compensation, said: "It is a generally recognized rule that a de facto officer cannot recover compensation annexed to the office, and that, while theacts of such officer are valid so far as they concern the publicor the rights of third persons, when he sues in his own right . . . he must show that he is an officer de jure," citing authorities. We have italicised particularly pertinent language.

And in this connection it is of interest to observe that the recognition by that court of one as a de facto officer, whose acts are valid as to third parties, although holding office in the teeth of the constitution, — certainly an extreme situation, — is directly sustained in this State. In Blackburn v. State, 3 Head, 689, the facts were that the Governor had appointed a Circuit Judge who was under the constitutional age limit of thirty years. The defendant filed his plea in abatement setting up this incompetency, which on demurrer was not sustained. This court, speaking through CARUTHERS, J., said: "It is true the Constitution requires a Circuit Judge to be thirty years of age. But if the appointing power confers the office upon one who is not competent, by that test the question is as to the effects upon his judgments, while he occupies and acts in the position. We think it well settled that the judgments and official acts of an officer de facto, are binding and valid and the competency of the functionary acting under commission cannot be inquired into by parties affected by them. This principle was adopted through necessity to save the rights of persons having an interest in them, and to prevent a failure of justice." After remarking that argument and citations were unnecessary on this point, in view of previous holdings, the court added: "He may be removed from the office, and his powers terminated by the proper proceedings, but until that is done, his acts are binding."

Having in mind "this principle," and the reasons underlying it, we find it impossible to distinguish — and no authority does — between the binding effect on third parties to be given the acts of one once regularly authorized to discharge official duty who holds over, and in unbroken continuity functions, in honest belief of authority; and that to be given the judicial acts of one appointed and performing in disregard of a positive inhibition of the constitution.

In Van Amringe v. Taylor, supra, an election contest case, the court found that one Thomas, who had assumed to act as registrar, without shadow of original authorization, "fraudulently got the registration books from the registrar under the false promise to return the same," etc. He was repudiated as a de facto officer. On the facts appearing he was assigned to the usurper class. Here there was no even colorable election and induction into office ab origine, and no reputation growing out of continued exercise of its duties, or element of acquiescence. Reviewing authorities, the court says: "A mere intruder or usurper is not ordinarily, but may become, an officer de facto. This can happen only by the continued exercise of the office by him, and the acquiescence therein by the public authorities and the public for such length of time as to afford to citizens generally a strong presumption that he had been duly appointed. But where, without color of authority, he simply assumes to act — to exercise authority as an officer — and the public know the fact, or reasonably ought to know, that he is a usurper, his acts are absolutely void for all purposes." In Turney v. Dibrell, 3 Baxt., at page 238, DEADERICK, J., thus states the case of a usurper:

"The Governor has, by law, power to appoint Chancellors in certain contingencies, and if he appoints, upon the assumption of the existence of circumstances which authorize the act, his appointee will take the office under color of title, his acts will be valid as an officer de facto, or one who is exercising the functions of his office under the forms of law and color of title.

"The Governor commissions judicial officers, and in the case ofBlackburn v. The State, 3 Head, Judge CARUTHERS uses this strong language: "The competency of a functionary acting under the commission of the Governor, cannot be inquired into by parties affected by his official acts." Again he says, speaking of the validity of the acts performed by one exercising the functions of an office and irregularities in his office, "all those questions are settled and closed by the Governor's commission," 5 Sneed, 514. On the other hand, if one assume to discharge the duties of an office, which has no existence by law, or to exercise the functions of an office not legally created, and purports to derive his authority in the latter case from a power which, under no circumstances, can legally confer it, he is an usurper, performing official duties under no forms of law, or color of title, and his acts are of no validity. For the case under consideration, the Governor appointed and commissioned the officer. The law confers upon him the power to do so in certain circumstances, whereby his appointee may become an officer de jure. If he commissioned under circumstances not authorized by law, he may, nevertheless, be an officer defacto, but not de jure, because of the irregularity or want of authority under the particular circumstances."

Prescott v. Haynes, supra, and Beincourt v. Parker, 27 Tex. 558, are cited for the general statement that "the acts of a usurper are void." It is true that in the Prescott case the court did remark, in passing, that "the acts of a mere usurper are void in all respects; "but," the court proceeded, "the acts of an officer de facto are valid, when they concern the public, or the rights of third persons who have an interest in the acts done, and the title of such an officer cannot be inquired into in any proceedings to which he is not a party."

"Such an officer may act under those who have a legal right to appoint, but by an irregular or informal appointment; or he may have a regular and sufficient appointment, but may not have been duly qualified to perform his duties under it; or he may have removed, as in this case, and become, perhaps, disqualified to act, if his authority was being inquired into by the State, who gave him his commission, in a proceeding directly against him; yet so long as he has not been removed, nor his authority revoked; and when he is doing business in the county, and acting as magistrate, claiming authority under his commission, which is still in life, this must be construed to give him some color of title; and when such an officer acts under color of title, his acts, when not expressly delared void by statute, though the performance of them may be punishable by a penalty, are in all cases, when coming in question incidentally, and as to third persons, held to be valid." The opinion concludes with citation of a long list of authorities from various jurisdictions.

Beincourt v. Parker, supra, is one of the very few reported cases wherein an act of one assuming to be an officer was held invalid. A deposition was suppressed upon a showing made below that the notary who took the acknowledgment in May of one year had vacated his office the previous August. The court recognized fully the de facto rule, but said, "Having ceased to be dejure a notary public for sometime previous to taking this deposition, it cannot be pretended that this single act, which is all that it is shown he attempted to do in this capacity, will constitute him a notary public de facto." Essential elements of the de facto status were lacking, particularly continuity and reputation.

It is obvious that none of these elements of usurper appear in the case at bar. On the contrary, we have here an actual and undisputed possession of office for the time, and not only a colorable, but a valid election and induction into office aborigine; also, a good faith belief in the right to exercise authority; and, also, acquiescence by litigants, the bar, all court officials and the public, coupled with the pertinent reputation. Given a de jure court, no case has been found in this country, or in England, wherein, under these conditions, a collateral attack by litigants affected by the acts of a judicial officer has been sustained.

In Venable v. Curd White, 2 Head, 582, a leading Tennessee case, WRIGHT, J., in the course of an opinion vigorously applying the de facto rule to judicial acts, declares that, "In England, upon a writ of error, the question whether the judges in the court below are properly judges or not, can never be decided; it being sufficient if they were judges de facto." And he says further: "There can be no doubt whatever, upon reason and authority, that a judgment given by a judge de facto, sitting and holding a court at the proper time and place, is as valid and free of error as a judgment pronounced by a judge rightfully in office." Says he, "the consequences of holding a contrary doctrine would be alarming, and it is very easy to see the most serious results would follow." Elsewhere in the opinion he stresses the distinction, already discussed, between the rule where the act is for the benefit of the officer, or where he is asserting rights, and that prevailing universally where the acts of the officer concern the public or interested third parties.

Under the subhead "Acting after expiration of term," in an exhaustive note in 140 Am. State Reps., p. 178, it is said: "Where an officer continues in the exercise of the duties of the office after his term of office has expired, or after his authority to act has ceased, he is an officer de facto, and the validity of his official acts cannot be questioned collaterally."

Among the great number of cases from many jurisdictions cited by the Annotator, who cites none contra to this general rule, is Haley v. Tipton, 2 Head, 403, wherein the act of a registrar after vacating his office by removal from the State was held "valid and effectual, upon the principle that it was the act of an officer de facto, acting under color of office." InGalbraith v. McFarland, 3 Cold., 267, cited for the same rule by Am. Eng. Ency. of Law, supra, the holding is thus summarized in the headnote: "An act performed by a clerk of the Circuit Court, after the term for which he was elected has expired by its own limitation, is valid. He was an officer defacto, and his official acts, so far as they affected the rights of third persons and the public, are as effectual and valid as if performed by an officer de jure." The opinion by MILLIGAN, J., cites 2 Kent's Com., 295; Farmers Merchants Bank v. Chester, 6 Humph., 458; Bates v. Dyer, 9 Humph., 163 (a sheriff), and Pearce v. Hawkins, 2 Swan., 87.

In 22 R.C.L., p. 598, it is said: "Where an officer under color of right continues in the exercise of the duties of the office after his term of office has expired, or after his authority to act has ceased, he is an officer de facto," citing among other authorities Hamlin v. Kassafer, supra, and Ekern v.McGovern, supra. In the Ekern case Mr. Justice MARSHALL used this language:

"One would assume from examination of the many cases precedingState ex rel. Jones v. Cates, and the many others subsequent thereto, that there could hardly be conceived a situation of an office de jure, and an entry and retention in good faith with all the environments of an officer of that character, without the person in possession being at least an officer de facto until such time as an adjudication of his title should occur."

In Manning v. Weeks, 139 U.S. 504, 35 L.Ed., 265 the Supreme Court of the United States reviewed a judgment of the Supreme Court of Wisconsin, sentencing Manning for manslaughter, it being contended that the person before whom he was tried was neither a de jure nor a de facto judge of the trial court. Holding that the judge who tried and sentenced Manning was at least a judge de facto and the sentence, therefore, valid, the judgment was affirmed, and the court quoted with approval fromRe Burke. 76 Wis. 357, 363, as follows: "If the office has been lawfully established and a person exercises the functions thereof by color of right, but whose election or appointment thereto is illegal, his official acts therein cannot be successfully attacked in collateral proceedings but in all such proceedings will be valid and binding until the officer is ousted by the judgment of a court in a direct proceeding to try his title to the office." The court cites, among others, the leading case of Norton v. Shelby County,118 U.S. 425, 30 L.Ed., 178. While holding in that case that there was no office to fill, either de facto or de jure, the question of whether or not there was an office in existence being primarily involved, the court discussed at length, reviewing many authorities, the de facto rule, and among other things said: "Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions." The opinion quotes with approval from Mr. Justice MANNING of the Supreme Court of Michigan, in Carleton v. People, 10 Mich. 259, as follows: "All that is required when there is an office to make an officer de facto, is that the individual claiming the office is in possession of it, performing its duties and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary that his election or appointment be valid, for that would make him an officer dejure. The official acts of such persons are recognized as valid on grounds of public policy, and for the protection of those having official business to transact." Quotation is made fromClark v. Commonwealth, 29 Pa. 129, as follows: "It was contended that the Act of the Legislature was equivalent to an appointment of a judge for that county, and therefore unconstitutional. The Supreme Court held that, admitting the law to be unconstitutional, the judge was an officer de facto and that the prisoner could not be heard to deny it." The Tennessee case of Blackburn v. State, supra, is cited with approval for the proposition "that the illegality of an appointment to a judicial office does not affect the validity of the acts of the judge."

In Ball v. U.S., 140 U.S. 118, 35 L.Ed., 377, a conviction for murder, wherein it was insisted that the authority of the presiding judge specially appointed to fill a temporary vacancy had expired and that other judges with jurisdiction were in existence, the Supreme Court held that "as to the April term, he was judge de facto, if not de jure, and his acts as such are not open to collateral attack," citing Norton v. ShelbyCounty, supra, Manning v. Weeks, supra, Clark v.Commonwealth, supra, Fowler v. Bebee, 9 Mass. 231;Commonwealth v. Taber, 123 Mass. 253; State v. Carroll,38 Conn. 449; Keith v. State, 49 Ark., 439; People v.Bangs, 24 Ill. 184.

Some of the decisions of this court have already been referred to in this opinion. The rule that acts of officers de facto are valid as to third persons and the public and that the competency, eligibility or authority of a public officer exercising his office in fact, although not a de jure officer, may not be collaterally attacked or inquired into by third parties affected has been announced and reaffirmed in an unbroken line of opinions of this court. In the course of his opinion in Heard v.Elliott, 116 Tenn., at page 155, Mr. Justice NEIL has listed many Tennessee authorities. Others to the same effect will be found in Notes 10 and 11 under Section 444 of Shannon's Code. We deem it unnecessary to extend this opinion by further citation and enumeration of these authorities. Suffice it to say that Tennessee is in line with the courts of England, the United States and practically all of the State courts.

The latest case in this State which considers the de facto rule is Beaver v. Hall, 142 Tenn. 416, wherein Mr. Justice McKINNEY extends the rule to courts operating under statutes later declared unconstitutional. This exhaustive opinion is replete with recognition and approval of the universal application of the de facto rule to acting judges and officers, the only division or debate was with respect to its extension to the courts themselves. What he forcefully says of the results flowing from a contrary view is applicable here: "Can it be said of those who were tried and acquitted that, where the statute of limitation has not intervened, or even where they were convicted and have served a jail sentence, they can now be indicted in the Circuit Court of Tipton County and convicted again for the reason that all former proceedings were an absolute nullity? Can the sheriff who incarcerated defendants by virtue of mittimuses issued to him by said court be held liable for false imprisonment because everything done by said court was absolutely void?"

One other supporting Tennessee case will be mentioned. InBrewer v. State, 74 Tenn. 198, a conviction for rape, in which case a special judge elected by the bar presided, the court applied the de facto rule. The opinion proceeds: (P. 203) "It is next argued that the special judge elected at the May term, had no power to adjourn the court over to a day not appointed by law to hold the court. The statute expressly confers upon a special judge ``all the power and authority' of the regular judge: Code, Sec. 3925. Under the Code, Sec. 4222, it is every day's practice for a judge to adjourn his court in his sound discretion, or to resume business after a failure to hold court for any cause during a reasonable interval of time. And if it be conceded that a formal order of adjournment for a period of two weeks was ultra vires, the court, if actually held at the time designated, would be a court defacto, and its proceedings valid: Venable v. Curd, 2 Head, 582. Even if the appointment had been of a special term, the business being formally continued to that term, the forfeiture might, it seems, have been taken: Elms v. State, 10 Humph., 127; Code, Sec. 4221. Nor does the fact that the term of another court of the circuit commenced in the interval, affect the result. This very point arose and was decided in favor of the validity of the proceedings in Cheek v. Merchants NationalBank, 9 Heisk., 489. The decision was based upon the principle of Venable v. Curd, and, to use the language of NELSON, J., ``public justice demands that the views announced in that case shall apply as well to criminal as to civil cases.' Henslie v.State, 3 Heisk., 206."

It may be observed from this extended review of the authorities that the exceptions recognized in the application of the general rule may be thus summarized:

(1) Where the attack was direct on the right of the person acting, or affected.

(2) Where the legality of the court was denied.

(3) Where the original entry of the office was forcible, or fraudulent.

(4) Where the act, or exercise of the office, was single, continuity being lacking.

(5) Where the assumption of office was in bad faith, with knowledge of infirmity of authority by the person undertaking to act and by the public.

(6) Where a judge de jure was in actual present possession and occupancy of the office, in fact functioning in discharge of its duties.

The battles have waged chiefly about the original appointment and induction — or the eligibility and competency of the officer — or the constitutional existence of the office or court. None of these considerations enter here. We have before us a case only of a holding over in good faith and with general acquiescence, beyond a term limit fixed by judicial construction — and no authority recognizes the right to attack collaterally judicial acts under such conditions.

On a former day (July 19, 1929) this court reversed a judgment of conviction in the case of Ed Grace et al. v. State, coming from Shelby County Criminal Court, in which the indictment was found by the same grand jury, organized on the same day as in this case, by Special Judge Wallace. Announcing in that opinion that (1) conviction for crime must be preceded by presentment or indictment, and (2) that a conviction may not constitutionally rest on a charge preferred by a grand jury illegally selected, and (3) that a grand jury organized by a court without authority of law is not legally empowered to act — the holding in Low v.State, supra, that the authority conferred by election of a special judge expires with the term at which he is chosen, was given application.

A petition to rehear was filed in that case and has today been granted, and the judgment below affirmed, the majority of the court, upon further and fuller consideration, having reached the conclusion hereinabove indicated, that this special judge was a judge de facto, and his acts as such valid.

While in the original opinion in the case of Grace et al. v.State, it was said that the power of the special judge under his appointment in December ended with the term, following Low v. State, supra, "leaving him without colorable claim to the office and without any such color of authority as might sustain his acts at a subsequent term upon the theory of a judge de facto," it is apparent that the statement just above quoted, which is the only reference in the opinion to the de facto rule, is not supported by the decision in the Low case. In the first place, the applicability of the defacto rule was neither considered nor passed on in that case, and in the second place, it could not have been properly applied, since the essential elements of reputation and continuity were wholly lacking.

In the Low case the "occasion" was the incompetency of the regular judge to try a particular case or "cause," coming within the conditions provided for by the statute arising when the regular judge "cannot properly preside in a cause or causes pending in such court" — while in the case at bar the "occasion" or exigency arose out of the absence of the regular judge on account of illness, provided for in other language of the statute. In that case, the functions and authority of the special judge were restricted to a single and specific "cause," and his final hearing of this "cause" was at another and distinct term of the court, when much time had intervened during which he did not occupy the office, and when the regular judge sat. The situation was wholly unlike that here presented, where the judge was elected to sit in all cases coming on for disposition during the absence and disability on account of illness of the regular judge; and where it appears that this occasion or exigency continued without a break or intermission, from the day of his election to the day of the exercise by him of the duties of the office in organizing the grand jury.

In the Low case the special judge, when he undertook to act at a subsequent term, had, of course, acquired no reputation as the judge of that court, and, as we have seen, reputation is a basic essential underlying the de facto doctrine.

The judgment is affirmed.

DISSENTING OPINION.