At the session of 1885 the legislature constituted the state one judicial district, and provided that there should be three judges of the district court. Pursuant to this law, three judges were elected at the general election of 1886 for the term of four years. Their terms will not expire by limitation until the first Monday in January, 1891. At the session of 1889 the legislature enacted that the number of district judges should be increased to four, and authorized the governor of the state to forthwith appoint a fourth judge. Respondent was commissioned under this authority in the month of March, 1889. This enactment, in so far as it attempts to increase the number of district judges during the term of the judges elected in 1886, is in direct violation of the provisions of the constitution, which require that the number shall not be increased or diminished "except in case of a vacancy, or upon the expiration of the term of an incumbent of the office." (Const. Art. 6, Sec. 5.) The enactment, being unconstitutional and void in the respect stated, created no office or judgeship to be filled. It was as inoperative as though it had never been passed. Node jure judge could be created by virtue of its provisions; and, if there could be no de jure judge, there could be no de facto judge, for the reason that the de facto doctrine pre-supposes provision by law for a de jure officer. It is considered, however, by the majority of the court, that if the law of 1889 be unconstitutional, the office of distinct judge created by the constitution and laws passed in pursuance thereof remains; that respondent is an incumbent of this office, and therefore a de facto officer. In my view the case does not admit of the application of thede facto doctrine.
At the time of respondent's appointment the office of district judge was, and continuously since has been, filled by the three judges before mentioned. A de facto officer, as the term implies, is one who is, in fact, the officer. It is evident that there is no room for such an officer if the number of officers fixed by the law are in the actual possession of the office. (McCahon v. *Page 65 Commissioners, 8 Kan. 437;Boardman v. Halliday, 10 Paige, 232;Morgan v. Quackenbush, 22 Barb. 80;Cohn v. Beal, 61 Miss. 399;State v. Blossom, 19 Nev. 312.)
The cases cited by the chief justice fall short, it seems to me, of estabishing the conclusion that respondent is ade facto officer. In State v. Carroll,Taylor v. Skrine and ex-parte Strang, the legal incumbant was temporarily incapable of discharging the duties of the office, and had surrendered it and its instrumentalities to the possession of the appointee. There was, therefore, in each of these cases, a vancacy, or that which was tantamount to one. In State, ex relDerusha v. McMartin, 43 N. W. Rep. 572, the office was vacant when the appointment was made. InLeach v. People, 122 Ill. 420, the legislature had passed an unconstitutional act, providing for the election of a board of supervisors for the management of the affairs of Wayne county, consisting of five members only, instead of fifteen. "The real cause of complaint," said the court in its opinion, "is that the office legally existing was illegally filled." The question in all of these cases was whether an officer appointed or elected under an unconstitutional act to a vacant office was a de facto officer. This question is not involved in the present case, because there was no vacancy in the legal organization of the court to be filled.
I think respondent should not be considered a judge defacto, and that the writ of prohibition should issue.