March 18, 1895, the defendant, then fourteen years of age, was indicted, at a Court of Oyer and Terminer, held in and for the county of Monroe, for (1) burglary in the third degree (Penal Code, § 498); (2) grand larceny in the second degree (Id. § 531); (3) receiving stolen property. (Id. § 550.) This indictment was sent to the Court of Sessions of Monroe county, there to be disposed of. March 30, 1895, a motion was made by the defendant to set aside the indictment on the ground that Daniel W. Forsyth assumed to act as special district attorney for the county when the charge against the defendant was investigated by the grand jury, examined the witnesses, drafted the indictment and signed it as special district attorney, which motion was denied.
April 3, 1895, the defendant pleaded not guilty; on the same day he was tried before the Monroe County Sessions and found guilty on the first count of the indictment of burglary in the third degree. Thereupon the defendant moved for a new trial, pursuant to section 465, Code Criminal Procedure, which was denied. ' April 8, 1895, the defendant was sentenced to imprisonment ■ in the State Industrial School at Rochester, FT. Y. A judgment was entered, from which and the'two orders the defendant has appealed.
Section 313 of the Code of Criminal Procedure provides:
“ Section 313. The indictment must be set aside by the court in which the defendant is arraigned, and Upon his motion, in either of the following cases: 1. * * * 2. When a person has been per*569mitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections- 262, 263 and 264.”
Sections 262, 263 and 264 provide that the district attorney may appear before the grand jury for the purpose of examining the witnesses, giving legal advice and information. Section 276 provides that indictments shall be signed by the district attorney. Daniel W. Forsyth was present during the session of the grand jury while the charge embraced in the indictment was under consideration, and, unless he was legally appointed and acting as special district attorney, his presence was in violation of the statute, and the command of the Code is that in such case the indictment “ must be set aside.”
When this indictment was found George D. Forsyth was the district attorney of Monroe county, duly elected as such at the general election held in 1892, and Howard H. Widener was the first and Stephen J. Warren was the second assistant district attorney of said county, duly appointed and acting as such, pursuant to section 203, chapter 18, General Laws (the County Law), as amended by chapter 70 of the Laws of 1893 (1 R. S. [9th ed.] 648). Both of the assistant district attorneys were present at the term at which the indictment was found, both of whom were qualified to act in this case, but the district attorney was unable to attend that court by reason of his sickness and absence from the State. Thereupon the Oyer and Terminer made and entered an order appointing Daniel W. Forsyth special district attorney during the term of the court. It appears by the record, and is undisputed, that he attended before the grand jury upon the investigation of this case, examined the witnesses, drafted the indictment and signed his name thereto as special district attorney.
Was there any statute in existence allowing the court to appoint a special district attorney in any case, and especially in case the assistant district attorneys were present and engaged in the discharge of their duties ?
By section 90 of title 2 of chapter 12 of part 1 of the Eevised Statutes it was provided:
“ § 90. When any district attorney shall fail to attend any of the courts above specified, it shall be the duty of such court to appoint *570some proper person, being an attorney or counsellor at law, to transact the business of the district attorney during the sitting of the court; and the person so appointed shall be entitled to the same compensation for the services he shall perform- that the district attorney would have been entitled to for the like services, and his account shall be audited and paid in the same manner.”
This section was taken from section 1 of chapter 254 of the Laws of 1824 (repealed, chap. 21, Laws of 1828, 2d meeting, 415), and it remained the law until 1847, when section 33 of chapter 470 of the Laws of 1847 was passed, which provided :
“ § 33. When the office of district attorney of any county shall be vacant at the term of any Court of Oyer and Terminer or Court of Sessions of any county, or the district attorney shall from any cause be unable to attend the term of any such court, the members of the court, except the justice of the Supreme Court, may designate some suitable person to act as district attorney at such term of the court; and the person so designated shall have and-exercise the same powers and discharge the same duties as district attorneys elected in the manner provided by law, and shall be entitled to such compensation, to he paid out of the treasury of the county, as the board of supervisors shall allow.”
This statute was substituted for section .90 of the Be vised Statutes, above quoted, to meet the provisions of section 8 of article 6 of the Constitution of 1846, which provided: “ They (judges of the Court of Appeals and justices of the Supreme Court) shall not exercise any power of appointment to public office.” This constitutional provision was abrogated by the amendments to the Constitution ratified in 1869, since which time justices of the' Supreme Court may and have exercised the power to appoint public officers when authorized by the Legislature.
Prior to June 21,1882, Courts of Oyer and Terminer, except those in the city and county of New York, were held by a justice of the Supreme Court and by county judges and justices of Sessions, but by section 1 of chapter 360 of the Laws of 1882 section 23 of the Code of Criminal Procedure was amended, and provides that Courts of .Oyer and Terminer shall be held by a justice of the Supreme Court without an associate. County judges and justices of Sessions, being no longer members of Courts of Oyer and Terminer, *571the power of a justice of the Supreme Court presiding at an Oyer and Terminer to appoint a special district attorney was doubted, and additional legislation was deemed necessary, the result of which was the passage of chapter 123 of the Laws of 1883, which provided :
“ Section 1. Section ninety of article seven, title two,- chapter twelve, part one of the Revised Statutes is amended so as to read as follows:
“ § 90. Whenever there is a vacancy, or the' district attorney of any county and his assistant, if he has one, shall not be in attendance at a term of any court of record, which he is by law required to attend; or shall be unable by sickness, or by being disqualified from acting in a particular case, to discharge his duties at any such term, the court may, by an order entered in its minutes, appoint some attorney at law residing in the county to act as special district attorney during the absence, inability or disqualification of the district attorney and his assistant; but such appointment shall not be made for a period beyond the adjournment of the term at which made. The special district attorney so appointed shall possess the powers and discharge the duties of the district attorney during -the period for which he shall be appointed. The board of supervisors of the county shall pay the necessary disbursements of, and a reasonable compensation for the services of the person so appointed and acting.
“ § 2. Section thirty-three of chapter four hundred and seventy of the laws of eighteen hundred and forty-seven is hereby repealed.
“ § 3. This act shall take effect immediately.”
It will be observed that by this statute two things are accomplished: (1) Section 90 of the Revised Statutes, as passed in 1828, was abrogated and a new section substituted in its stead which became section 90 of chapter 12 of part 1 of the Revised Statutes of this State; (2) section 33 of chapter 470 of the Laws of 1847 was repealed.
By chapter 686 of the Laws of 1892 (Chap. 18, General Laws — the County Law — 1 R. S. [9th ed.] 593, 660) the 12th chapter of the 1st part of the Revised Statutes was repealed, but section 2 of chapter 123 of the Laws of 1883, being no part of the Revised Statutes, was not repealed, so that since the passage of the County *572Law in 1892, no statute has existed authorizing courts to appoint special district attorneys. ' •
The argument that the Commission of Statutory Revision and the Legislature could not have intended to repeal a statute so important and necessary, without providing a substitute therefor, is entitled to no weight. It has been repealed in express terms, and that seems to me to be. an end of the matter. .
Courts do not presume that the Legislature is ignorant of the statutes relating to subject's upon which it undertakes to legislate. (Cox v. The Mayor, 103 N. Y. 519, 524.) Ror can they hold that a statute which has been expressly repealed is not repealed because it ought not to have been.. This would be usurping a power which the courts have not and should not possess.
So far a§ I know it has never been doubted or argued that the repeal of a chapter, title or section of the Revised Statutes did not carry down with'it all previous amendments of the chapter, title Or section repealed. Since 1828 it has been the practice of the Legislature to repeal chapters, titles and sections of the Revised Statutes by referring to the chapters, titles and sections, and a decision that those repealing acts did not repeal all previous amendments to those statutes, would throw the law of this State into inextricable confusion.
If it could be held that section 90 of chapter 12 of the Revised Statutes, as amended in 1883, were ¡still in force, 1 should be unable to hold that a court could appoint a special district attorney unless the district attorney of the county and his assistant, if he has one, should not be in attendance at the term. Under section 90 of the Revised Statutes, above quoted, the district attorney of the county and his assistant, if he has one,-must both be absent or disqualified, and, in such a case, “ the ' court may * * * appoint some attorney at law * * * to act as special district attorney during the absence, inability or disqualification of the district attorney and Ms assistant.”
The statute is not á disjunctive, but it is a conjunctive one, and all the conditions must exist before an appointment can be made under it.
The word “ and ” in a statute may, be construed to mean “ or ” for the purpose of carrying into effect the clear intent of the Legisla*573tnre, and for the same purpose “ or ” may be construed to mean “ and,” but never for the purpose of thwarting the intention of the Legislature, nor for giving a meaning to the statute not clearly intended. The plain intent of the Legislature was to authorize the court to appoint a special district attorney in case there was no officer present having authority to take charge of the criminal cases pending in the court, and so prevent a failure of justice. There was no such exigency at the Oyer and Terminer at which this indictment was found. Two assistant district attorneys were present and were qualified to act in this case.
It is suggested that the Oyer and Terminer had inherent power to appoint a special district attorney, and Dukes v. The State (11 Ind. 557) is cited in support of the suggestion. The appointment considered in that case was made pursuant to section 5 of chapter 3 of the Revised Statutes of Indiana (Vol. 2, p. 386, ed. of 1852; vol. 2, p. 430, ed. of 1870; vol. 2, § 5865, ed. of 1888), which provides : " If any prosecuting or district attorney fail to attend any court of his circuit or district, as the case may be, the judge of such circuit or district shall appoint some one to prosecute for such term.”
In the case cited the district attorney was absent and the court appointed an attorney for the term, who had been retained 'to defend a person whose case was pending before the grand jury, and thereupon the court appointed another attorney to prosecute that case. The court, having the power to appoint for the term, it was held that it might appoint for a part of a term or for one case. In considering the case the term “ inherent power ” was used, but the case was not decided on that ground, but upon the ground that power was given by the statute quoted.
If it be assumed that the Oyer and Terminer had inherent power to appoint a special district attorney so as to prevent the failure of justice, there was, as before stated, no exigency requiring the exercise of such a power, as there were two assistant district attorneys present at the term who were qualified to act. It is also suggested, though I think the point is not much relied on, that Daniel W. Eorsyth was a “ de facto district attorney.” A de facto officer is one who, by virtue of an election or appointment claimed to be valid, enters upon and assumes to discharge the duties , of a public *574•office, but the term does not denote one who assumes to perform,for a brief period, some of the duties of an office. Daniel W. Forsyth did not claim to be the de jure or de facto district attorney, for that office was filled.
In the opinion of the learned presiding justice it is said, in effect, that, assuming that there was no statutory or inherent power in the court to make this appointment, and that Daniel W. Forsyth had no authority to appear before the grand jury, examine the witnesses, draft and authenticate this' indictment, no harm was done to the defendant, and the judgment of conviction should be sustained, under sections 542 and 684 of the Code of Criminal Procedure, which are as follows:
“ § 542. After hearing the appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.
“ § 684. Heither a departure from the form or mode prescribed by this Code in respect to any pleadings or proceedings, nor an error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice in respect to a substantial right.”
These sections are not designed to .cure errors affecting the jurisdiction of courts to try a defendant for a felony. Before a person can be legally tried for a felony under the Constitution, a legal indictment must be found in the manner prescribed by the statute, and the section of the Code quoted at the beginning of the opinion provides that in case an unauthorized person is present when the grand jury is investigating the charge embraced in the indictment, it must be set aside' for this cause on the motion of the defendant, which, to my mind, makes it clear that it was not intended that sections 542 and 684 should cure this error.
The judgment should be reversed and the defendant discharged.
Judgment and orders affirmed and judgment to be entered and certified and remitted, pursuant to sections 547 and 548 of the Code of Criminal Procedure.