The first finding in this case is, “that on the 15th dayof April, 1857, the relator had not received and did not possess any valid appointment or lawful warrant as member of the police department, under the act of April 13th, 1853, and had not been duly commissioned or appointed as such member, under said act.” This finding disposes of the case.
The court of appeals, in The People ex rel. McCune v. The Board of Police, (19 N. Y. Rep. 188,) expressly repudiate the idea that the act of 15th of April, 1857, appointed the members of the old police members of the new, and held that they were continued in office merely because no new oath of office was necessary in order to make them officers of the new force.
In continuing policemen in office, it is reasonable to presume that the legislature intended to continue those who were in by valid appointments. It would be absurd to suppose that the legislature designed to make new members of the, new force, who, by fraud or unfair practice on the part of those who had the power of appointment, should have a nominal membership in the force. Section 33 of the act of 1857 demonstrates that it was not the intention to retain in the new force any member of the old not legally qualified. That section provides that the board shall remove from office any member of the police department of Hew York and Brooklyn not possessed of the qualifications set forth in the 7th section of that act. This of course applies to those who have been legally qualified, but who could not read and write the English language, or who were not citizens of the United States; or who shall not have resided in the police district five years; or who shall have been convicted of crime.
The language does not, in terms, authorize the continuance in office of any policeman not legally appointed. If we *548are right in supposing it was not the intention of the legislature to do so, then surely it requires some positive rule of law to accomplish a result that the legislature have neither intended nor provided for.
If the legislature has not converted an officer de facto into an officer de jure by the 32d section of the act of 1857, then the member of the force who was such de facto before the act is such de facto still.
The question then is, is an officer de facto, who has been deprived of his office, entitled to a mandamus to restore him to it; or is that the right of the officer de jure only P
So far as the public are concerned, the acts of the officer de facto are as valid as those of an officer de jure. (People v. Collins, 7 John. 549. McInstry v. Tanner, 9 id. 135. Parker v. Baker, 8 Paige, 428. People v. Covert, 1 Hill, 674. Greenleaf v. Low, 4 Denio, 168. Weeks v. Ellis, 2 Barb. S. C. R. 320.)
The officer de facto cannot, however, maintain an action in his own behalf founded on his office, or right of office. (Green v. Burke, 23 Wend. 490. The People v. Hopson, 1 Denio, 574.)
It would seem to follow, from the cases last cited, that the officer de facto could not maintain an action to recover his office if he was ousted or removed therefrom by reason of the defect of title.
While I find no case which holds that the officer de facto is entitled to a mandamus to restore him to his office when removed, there are several authorities which approach so near to it that I think they may be considered as supporting that proposition. In Tapping on Mandamus, pp. 28, 29, it is said that the prosecutor (for a mandamus) must be clothed with a clear, legal and equitable right to something which is properly the subject of the writ; and also that it is legally demandable from the person to whom such writ must be directed ; otherwise the court will not interfere.
*549Can it be said that an officer de facto has a clear, legal and equitable right to his office ? It seems to me not.
If there has been an election which is void, the court will by mandamus require the electors to proceed to a new election, although there is a person in office under the void election. (Tapping on Mandamus, 181.) When, however, the incumbent is in by an election prima facie good, the court will not grant a mandamus to the person legally entitled, because he has a remedy by quo warranto. (Id. 182.)
When the office is full by appointment clearly made without authority, the writ will be granted, though generally a plenarty is an objection to such a proceeding. (Id. 183.)
The same author, at page 185, says, when there is an ascertained defect of title in him who applies for admission to an office, the court will not admit him, for he may be ousted immediately.
In The King v. The Mayor &c. of London, (1 Term Rep. 423,) a mandamus was refused to a person elected for the fourth year, after having been elected three successive years to an office to which, by the custom of the city, no person could be elected or serve more than two years successively.
The relator, by the findings, not only had no legal appointment to the office of policeman under the old board, but he refused to take or hold, and never has taken or held, office under the act creating the new board, and since the passage of that act has been engaged in employments wholly inconsistent with the performance of the duties of a member of the police force. It is not found that he ever performed duty as policeman, nor that he had even the color of an appointment. He was not, under such circumstances, even an officer de facto. Section 32 does not reach this relator. That section continues in office only those members of the police who were officers or patrolmen at the passage of that act. The relator is not shown to have been a member of the force, in any way whatever, and hence he was not permitted to do duty under the new act.
*550[New York General Term, November 18, 1861.For these and other minor considerations, I am of the opinion that the relator is not entitled to the relief he seeks; and that there must he a judgment on the verdict, for the defendants.
Mandamus granted.
Clerke, Leonard and Mullin, Justices.]