The prisoner was indicted September 19, 1881. When arraigned he filed a plea setting forth certain talleged defects in the forming of the grand jury which .■indicted him. The district attorney filed a replication and the (prisoner a rejoinder. The prisoner offered to prove certain ¿facts set up in his plea. The court excluded the evidence, *163and, on the motion of the district attorney, overruled the rest of the plea. Thereupon the defendant demanded a trial and pleaded not guilty.
Ho such plea as that offered by the defendant is now allowed (Code Crim. Pro., secs. 273, 332). And a plea must be oral (Sec. 333). It was proper, therefore, to require the prisoner to plead one of the three pleas authorized by section 332.
The prisoner, upon pleading not guilty, moved to set aside the indictment on the ground that the grand jury was unlawfully selected and drawn, and for the reasons stated in his plea, and offered to prove certain facts by legislative journals and by oral testimony. The offer was overruled.
He also moved to quash the indictment on the said grounds. This was overruled.
The Code of Criminal Procedure seems to have substituted a motion to set aside an indictment for the former motion to quash (Sec. 313). It must be set aside, when it is not found indorsed and presented as prescribed in sections 268 and 272. The only ground which the prisoner makes is that none of the persons who, as grand jurors, found the indictment were grand jurors. >
A motion to quash an indictment, and so a motion to set it aside, should be made upon affidavits. Ho affidavit appears in this case. We know of no practice by which the prisoner on such a motion offers to prove certain facts and endeavors to take exceptions to the exclusion of such offer. The proceeding is not a trial, but a mere motion, which must be based on affidavits. There are none here.
Again, so far as we can discover, the Code of Criminal Procedure has not provided for any review of the order granted on such a motion. Section 517 says that, on appeal, any intermediate order, forming a part of the judgment-roll as prescribed in section 485, may be reviewed. On turning to section 485 it will be found that the judgment-roll is not required to contain the proceedings on a motion to set aside the indictment. So that we find no authority for the review *164of an order setting aside or refusing to set aside an indictment. If it be suggested that the proceedings on that motion should appear in the bill of exceptions, and hence in the judgment-roll, the contrary is shown by section 455.
Furthermore, we find no order whatever refusing to set aside the indictment.
The legislature may well have thought that, as an indictment is only an accusation, it was sufficient to give the trial court power to set it aside, and was unnecessary to permit appeals from the action of that court;
It is, however, urged by the prisoner that the constitution provides that a person shall not be held to answer for such a crime, except on indictment of a grand jury (Art. 1, sec. 6). That the body which indicted him was not a legal grand jury; and.that, therefore, he cannot be constitutionally deprived of his right to assert that he was not so indicted. That may be so ; the prisoner did assert that he was not legally indicted, by his motion to set aside the indictment; and that was decided against him. We do not understand that there is any constitutional provision which allows a party always to appeal to the highest court, even when his grievance is that a constitutional .right has been infringed. When, and on what grounds, appeals shall be allowed are questions for the legislature.:. So that unless a right of appeal has been given from an order, refusing to set aside an indictment, we cannot hear that question. This paper was not a challenge to the array of grand juries, for none is allowed (Code Crim. Pro., sec. 258). And after indictment found there could plainly be no challenge to the grand jury individually (Sec. 239). So far as the indictment is concerned, the prisoner’s remedies are those given in section 313. But if we could review the refusal to set aside the indictment, we should find no error. Proceedings are not affected 'by imperfection in matters of form (Code Crim. Pro. sec. 285). A grand jury is defined in section 223 ; the prisoner’s allegation is that the persons who found the indictment were drawn by the officers, under claim *165»f law, from the petit jury box instead of the grand jury box. But if this be a ground of objection, it must be so under section 238, subdivision 1, Code of Criminal Procedure. And that section leaves it to the discretion of the court to discharge the panel. The court in which the indictment was found had jurisdiction. Persons were returned to that court as grand jurors, and were sworn and acted as such, and thus they formed a legal grand jury (Dolan agt. People, 13 Sup. Ct. N. Y., 494).
The prisoner having pleaded not guilty, a jury was ordered to be impanneled. Thereupon it appears the prisoner’s counsel objected to the panel of jurors, and to each juror, upon the ground that chapter 532 of-the Laws of 1881 was unconstitutional, being a local act, &c., “ and offered to substantiate the ■ same by proof, which was objected to, sustained and an exception taken.”
An objection to a panel of jurors and to each juror must have been intended as a challenge, that being the only mode known to the law of making such objection (Code Crim. Pro., sec. 359).
N ow, the first difficulty in regard to this challenge to the pan el is, that such a challenge must be in writing (Sec. 363). Mo written challenge appears. The so-called plea referred only to the grand jurors. The next difficulty is that no facts are stated sufficient to constitute a challenge. It is not alleged that the petit jurors were drawn under chapter 532 of the Laws of 1881. Again, none of the proceedings required by sections 365 and 366 were taken. So that here was no exception to the challenge (Sec. 364); a denial of the challenge (Sec. 366); a trial of the challenge (Sec. 377). We do not know whether the court held the challenge to be sufficient, or the allegations to be untrue. Mor does it even appear what evidence was offered, so that we can judge whether it was properly excluded or not.
If we overlook all these difficulties and suppose that the court held the challenge insufficient, was there any error ? A *166challenge to the panel can he founded only on a material departure, to the prejudice of the defendant, from the forms presented by the Code of Civil Procedure in respect to the drawing and return of the jury (Sec. 362). The other ground contained in that section is not claimed. The forms prescribed for the drawing and return of the jury are found in the Code Civil Procedure (Secs. 1043 to 1048). An examination of those sections will show that there is nothing in them on which this challenge could be based. It is not alleged that the clerk did not conduct the drawing of ju-rors in the very manner prescribed by these sections. His duty is to draw the jury from the box containing the ballots (Sec. 1027). These ballots he is previously to prepare (Sec. 1038). The right to challenge the panel, says nothing in express words as to a challenge for any material departure in respect to the preparing of the ballots. And the legislature may have thought that against the introduction of improper persons by the clerk, in preparing the ballots, the prisoner was sufficiently protected by his right to challenge individual jurors for cause (Code Crim. Pro., secs. 375 to 377).
Por if we overlook all the difficulties which we have seen stand in the prisoner’s way on this appeal, and inquire what would have been his ground of complaint if he had properly presented it, we shall find it to be this: that the county clerk, in preparing ballots and putting them in the box under section 1038, Code of Civil Procedure, put in names which had not been selected by the proper officers. It is not claimed that a list had not been made out and filed with the clerk, or that he did not make his ballots from such list. But it is claimed that such list was not made out by the officers authorized to make the same; but was made by other officers claim ing the legal right. Hor is it pretended that there was any list from which the clerk could prepare ballots, except that list from which he did prepare them. How, then, can it be claimed that in drawing this jury the clerk departed from the forms of section 1047, Code of Civil Procedure. The legis*167lature may well have refused to give any right of challenge for any fault or error in the preparation of the jury list; provided only that the clerk properly drew the trial jury from the box of ballots-prepared by him.
Assume then, for the present, that the list of names of all persons believed to be qualified to serve as trial jurors was made up by the wrong officers; what is that to the prisoner ? If any juror drawn on the trial is objectionable, he can be challenged. This list is made up, and the system of drawing jurors by the clerk is adopted “ to secure a due and uniform distribution of jury duty, and to guard the great body of jurymen from the fraud or favoritism of the drawing and summoning officers ” (Friery agt. People, 2 Abb. Ct. App., 230). Challenges to the array existed formerly for the reason that there might be prejudice on the part of the sheriff. ¡Now since such prejudice cannot affect the drawing, these challenges have been limited as above stated (Code Crim. Pro., sec. 362), and there must be a departure u to the prejudice of the defendant.” ¡No prejudice to the prisoner is' shown or suggested. These irregularities are of no consequence (Car agt. People, 80 N. Y., 500).
But further, if the question of the constitutionality of chapter 532, ¡Laws of 1881, were before us, we could not hold it to be unconstitutional. The restriction on the legislature contained in section 18, article 3 of the Constitution, is qualified by section 25 of the same act. The restriction does not apply to any bill or the amendments to any bill which shall be reported to the legislature by commissioners who have been appointed pursuant to law to revise the statutes. If this law is to be held unconstitutional, then it must be upon a finding of the fact that it was not so reported. Whether or not there were any such commissioners in 1881 is not decisive. They may have reported the bill several years before, although it was not passed by the legislature until 1881. We do not say that such is the fact; only that it is possible. Then the constitutionality of the law must *168depend, not on the construction of language which is a matter of law, and, therefore, of conclusive judicial decision, but on a question of fact, which may be found by one tribunal in one way and by another tribunal in another. On the trial of this present case, the court might, on the question of fact, have found that the commissioners did report the bill, and have held the law, therefore, constitutional. At the next court the same question may arise, and the court may find that the commissioners did not report the bill, and, therefore, hold the law unconstitutional.
When the constitution permitted the legislature to pass such a law, if reported to them by certain commissioners, it necessarily made the legislature the judges of the fact whether the law had been so reported. Their decision must be conclusive. No other rule would be tolerable. The constitutionality of laws cannot be permitted to depend on the possibly varying decisions of courts or juries on mere question of fact, especially on a fact as to which the legislature had special knowledge (Matter of N. Y. Elev. R. R., 70 N. Y., 351; People agt. Doolin, 33 N. Y., 279).
The judgment and conviction should be affirmed.
The same in the other case against the same prisoner.
Bockes, J. The defendant was indicted in the Albany county sessions, September, 1881, for the crime of grand larceny, committed in August of that year. He was tried at the March term of that court, 1882, was found guilty, and was sentenced to imprisonment in the penitentiary for the period of five years.
When arraigned he interposed objections to the finding of the indictment in various formsall, however, centering in this: that the grand jury which found the indictment was drawn from the names of persons selected by the recorder of the city of Albany, instead of from a list of names of persons selected by the supervisors of the county, and from the petit jury list; which proceeding, in that regard, was taken *169under and pursuant to section 1041 of the Code of Civil Procedure, as amended by chapter 532 of the Session Laws of 1881; whereas, as was insisted, such section, as amended, was unconstitutional in so far as it provided for the selection of grand jurors in and for the county of Albany by the recorder of that city; hence that the grand jury should have been selected and drawn under and pursuant to the provisions of the Revised Statutes, which, as was claimed, remained in force.
The objections so urged against the indictment was overruled by the court and the defendant was put to his plea of not guilty.
The objection interposed was in the nature of a challenge to the array. . It went to the entire panel, and was based on on alleged vice or irregularity in the selection of the grand jurors by whom the indictment was found. It can make no difference as regards the examination of the question before the court, that the objection was made by formal plea, like a plea in abatement to the jurisdiction of the court or for misnomer. This was but a mode of presenting the question for decision. The point to be determined by the court was whether, on the alleged facts, the indictment was regularly found — whether the defendant was bound by the law to make answer to it, on the merits, as to his guilt or innocence. The mode of presenting the question is quite immaterial. Whatever may be the form of its presentation, the question is whether the objection, based on the alleged facts, was properly overruled. It is proposed, however, to examine the case in all its aspects, at least in so far as is needful to dispose of it as here presented.
The defendant’s counsel insists that the question presented for decision must be considered under the provisions of the Revised Statutes; this, on the hypothesis that the act of 1881 {chap. 532) is unconstitutional and void, and that, as a consequence, the provisions of the Revised Statutes bearing on the subject remain in force. '
*170Now let this be conceded and let it be also admitted that the objection to the indictment is, in effect, a challenge to the array, and should be so considered, and the objection is met and answered by section 28 of the Revised Statutes (2 R. S., 724, marginal paging), which declares that no challenge to the array of grand jurors shall be allowed in any other cases than such as are specified in the last preceding section (27), which section (27) does not include the ground here relied on. As was said by Sellen, J., in Dawson agt. The People (25 N. Y., 404-405), this statute “limits the grounds of challenge by persons charged with crime to the prosecutor or complainant making the charge, and the witnesses to sustain it.” This provision was doubtless intended to cover matters of singularity in obtaining the panel of grand jurors, recognizing the fact that the substantial rights of the accused could be and would be fully protected to him on the trial upon the indictment before the petit jury. If, therefore, it be assumed that the case is one of challenge to the array, and that the question raised is to be controlled by the provisions of the Revised Statutes, it follows that the objection urged is nullified by the sections above cited (Carpenter agt. The People, 64 N. Y., 483). Besides, it has been repeatedly decided that irregularities in the selection or drawing of grand jurors not affecting the substantial rights of the accused, as regards the question of his guilt or innocence, is not good ground of challenge to the array (Friery agt. The People, 2 Keyes, 424; Cox agt. The People 80 N. Y., 500-511; Dolan agt. The People, 64 N. Y., 485; Same case, in Sup. Ct., 6 Hun, 232 and 493). In Dolan’s case the question was considered (as stated by judge Dajstiels), on what was relied upon as a plea in abatement (See, also, statement of the case 64 N. Y., 486-487). In this case judge Earl says: “ Courts do not look with indulgence upon objections to irregularities in the mode of selecting or drawing grand jurors committed without fraud or design, which have not resulted in placing upon any panel disqualified jurors.” But the defendant’s counsel insists *171that these authorities relate to mere irregularities, and do not reach the case in hand, inasmuch as the ground of objection here is vital, such as (if admitted) depriving the array of the character of a legal panel. ¡Mow in Dolan’s case, the ground urged was the same as is here urged, to wit: that the pretended grand jury which found the indictment was not a grand jury in and for the city and county (64 N. Y., 486-487); that it was not “lawfully created and organized” (6 Hun, 495); yet the objection was held inadmissible. The objection in that case was as “ vital ” and as much deprived “the array of the character of a legal panel ” as in the present. I shall have occasion hereafter to refer more particularly to the ground of objection in Dolan’s case. But attention is here called to the remarks of judge Eabl in that case. The learned judge says: “ The plea contains no allegation of any corruption, dishonesty or unfairness on the part of any of the officers in selecting and drawing the grand jurors, or of any design to injure the defendant or any other person, and it contains no allegation that any of the persons who were upon the grand jury which indicted the defendant did not possess the qualifications of grand jurors, or that any person was upon the jury who would not have been there if all the forms of law which are claimed to have been disregarded had been complied with. It is not apparent how the alleged irregularities harmed the defendant, and it is certain that they had no relation whatever to the question of his guilt or innocence of the crime charged. Under such circumstances the indictment should be upheld, unless the facts pleaded point out some vital error.” As above suggested, the objection there under consideration was no less vital than it is in this. The remarks of Mr. justice Daniels, in Dolan’s case, when in this court, are in line with those of judge Eabl above quoted (6 Hun, 494; see, also, The People agt. Dolan, 6 Hun, 232, and Friery agt. The People, 1 Keyes, 424). From these and other cases it would seem, therefore, that these alleged errors urged by the defend*172ant as ground of objection to the indictment are untenable, inasmuch as it is not made apparent that he was or could be in any way injured or prejudiced by them.
But there is another answer to the objections- urged which seems entirely conclusive against their allowance.
The court in which the indictment was found had undoubted jurisdiction of the case. The list of names of persons to serve as grand jurors was made up from the right source — that is, from the body of the court — and the names of the persons drawn to serve as grand jurors were, as must be presumed? certified to the court in due form by the record. It is not pretended but that they were drawn by the proper officers; nor but that they were, one and all, duly qualified to serve and act as grand jurors in and for the county of Albany; nor but that they were honest, intelligent and impartial, were duly summoned and impanneled in due form, and in all respects performed the duties of grand jurors according to the forms of law. Considered as officers of the law to aid in the administration of justice in criminal cases, they constituted a defacto body in the exercise of legal functions, under color of lawful authority. So it was held in The People agt. Dolan (6 Hun, 232), that it was sufficient to maintain the authority of the grand jury to investigate criminal charges and find indictments valid in their nature, that the body acted under color of lawful authority, and according to the case of Thompson agt. The People (6 Hun, 135), it would not alter this conclusion even if the selection of the grand jurors involved, in the proceeding, the acts of an officer holding his office under an unconstitutional law. It was then decided that such officer must be deemed an officer de facto, whose acts could not be brought in question in a collateral proceeding between other parties. True, this latter decision was made with reference to the panel of petit jurors, but the principle thus declared is equally applicable to a case where like objection is urged to the panel of a grand jury. But the decision in Thompson’s case meets and answers the precise point urged here, to wit: that the *173recorder of the city of Albany assumed to act and did act in the selection of the jury list without authority, under and pursuant to an unconstitutional law. It was then directed that a challenge to the array by the accused could not be sustained, even were it true that the panel was selected by the commissioner of jurors, appointed under an unconstitutional law; that such officer must be deemed to be an officer defacto, whose acts could not be brought in question in a collateral action or proceeding. It is the well settled rule that the title of an officer de facto cannot be assailed collaterally; that the acts of such officer are valid in so far as the public and third persons are concerned (Thompson agt. The People, 6 Hun, 138, and cases there cited ; Dolan agt. The People, 24 N. Y., 495 ; Carpenter agt. The People, 24 N. Y., 483; Dolan agt. Mayor, 68 N. Y., 278, 279; see, also, 5 Wait’s Actions and Defenses, 7, and the many cases there cited). As above stated, it matters not that one of the officers, through whose instrumentality the jurors were obtained, held his position under an unconstitutional law. In Thompson agt. The People, a challenge to the array was interposed — the alleged ground thereof being that the panel of jurors was selected by Dunlap, acting as a commissioner of juror under appointment by the mayor of the city of Hew York, in pursuance of an alleged unconstitutional law. The district attorney demurred to the challenge, and it was disallowed. It was then said, “ it is enough, in all cases, when such a question is raised collaterally, that the person acting as an officer is discharging the duties of the office under color of right, evidenced by his possession of the office, and by exercising its functions under the power of an appointment or election independently of the question of legal title; hence the court below was entirely right in holding that Dunlop’s official acts could not in this case be questioned by challenge on the ground alleged.” To the same effect are the remarks of Daniels, J., in Dolan’s case (6 Hun, 499), where the objection urged was of the same character as in Thompsons case (64 N. Y., 483), and where *174the objection was raised by what was designated as a plea in abatement. A like objection was raised in Carpenter's case (64 N. Y., 483), to wit: That the act of the legislature under which Dunlop was appointed commissioner of jurors was unconstitutional. The court held that he was an officer de facto, whose acts were valid as to the public; that this validity of his appointment cannot be drawn in question in this collateral manner. In The State agt. Carroll (38 Conn., 449), it was decided that one acting under color of an appointment by or pursuant to a public unconstitutional law before it was adjudged to be such, was to be deemed an officer de facto, and that his acts as such were valid as to the public and third persons. This subject received a very elaborate examination in this case on the authorities, as well as those of older date, as of a more recent period. In The Commonwealth agt. McCombs (56 Penn., 436), it was held that a person who holds an office under the apparent authority of a statue as an officer de facto, whose title could not be assailed collaterally, even though the statute be unconstitutional. But it is said that the office of recorder was well filled by an officer holding under authority good both in fact and law; that it is not disputed that he was recorder and might well perform the duties pertaining to that office. But the point is urged that other rights and powers were attempted to be conferred on him by an unconstitutional law. The case, however, is not changed by this view of it; and for the reason that the recorder was an officer de facto as regards the duties imposed on him by the law here challenged •— as much so as if a new office had been thereby created and he had been appointed to perform its duties. He was not a usurper as regards the performance of those duties in any legal sense. A usurper is one who undertakes to perform official acts without .any color of right. Here the recorder acted certainly under color of right. His action had the sanction of an apparent law, duly certified to him and to the people as a valid law of the'state. It may, too, be here added that it stands undisputed *175that the legislature, under a certain condition or state of facts, had the constitutional right to pass precisely this law. How, every law which the legislature may pass is presumed, when duly certified as a law of the state, to he valid. To meet this point, "a fact was averred which, if proved, would, as was insisted, render the law unconstitutional. But proof, of such fact would be inadmissible (The People agt. Devlin, 33 N. Y. 269, and cases there cited; Matter of N. Y. Elevated R. R. Co., 70 N. Y., 351). In this latter case judge Earl puts the inquiry, “ can the court take proof for the purpose of showing a statute, valid and regular upon its face, to be unconstitutional?” and gives a negative answer. Then, in executing such law, or in executing any law, indeed, duly certified as a valid law of the state, can it be maintained that the officer appointed to carry its provisions into effect acts, in so doing, without the semblance or color- of authority ? The cases above cited, and many others referred to in those cases, answer this question in the negative. It is repeatedly and repeatedly declared in the decisions of the courts that an unconstitutional law gives the semblance or color of authority to its provisions. There was nothing decided in Lambert agt. The People (76 N. Y., 220), in conflict with the cases above cited. The precise point here under discussion was not in that case; and as it seems the views of the several members of the court on the subject then considered were not in all respects in harmony. We conclude, therefore, that the objection here urged against the indictment was properly overruled; and this whether it be deemed to be a challenge to the array or considered as a plea in abatement. In either case the ground of objection must be held untenable.
So far the case has been considered without regard to the provisions of the Code of Criminal Procedure.
But if the case is to be determined under the provisions of this Code, which went into effect on the 1st of September, 1881, before the indictment was found (see section 962), and admitting the invalidity of the law of 1881, because of its *176alleged unconstitutionality, thereby section 238, the objection, being a challenge to the panel or array, was inadmissible.
This section (238) declares that no challenge can be allowed to the panel or to the array of the grand jury; but provides that the court may, in its discretion, discharge the panel and order another to be summoned in certain specified cases. This section, however, has application to proceedings to be taken before indictment found. The proceedings permissible to the accused after indictment are provided for in subsequent sections. Section 312 provides that the defendant may, when arraigned, move the court to set aside the indictment, or may demur or plead thereto. Sections 312 and 313 declare in what cases only he may have the- indictment set aside. The specified grounds of such motion do not touch the case in hand. We are then brought to section 321, which declares that the only pleading allowed to the accused is either a demurrer or a plea. Section 322 declares the cases in which a demurrer may be interposed, and confines the demurrer to matters appearing on the face of the indictment. This section has here no application. Then section 332 provides for three kinds of pleas, to wit: Guilty, not guilty, and former conviction or aquittal. No other pleas are allowed by the Code. The objection in this case, therefore, considered even as a formal, technical plea of matter in abatement was inadmissible under the Code of Criminal Procedure. Thus, if it be admitted that the case is to be determined under the provisions of the Code of Criminal Procedure,’ the objection urged was properly overruled.
In view of the conclusions above reached, it becomes unnecessary to examine the question raised by the defendant’s counsel as to the validity of the act of June 16, 1881 (chapter 532). We are of the opinion that the defendant was properly put to his plea to the merits.
He pleaded not guilty. On the trial, upon such plea and in the outset, the same objections were “ interposed to the panel of the petit jury as had been previously urged against *177the panel of the grand jury, to wit: that the jurors had been selected from the body of the county, under and pursuant to the act of June 16, 1881, chapter 532, which act, as was claimed, was in violation of the constitution and void in so far as it provided for the selecting and drawing of jurors in and for the county of Albany. This was in effect, and in fact, a challenge to the array of the petit jury. Was this-objection or challenge properly overruled ? The same answer must be given as was above made to the objection to the panel of grand jurors, that is: the jurors were selected. from the right source — from the body of the county; they were duly drawn, summoned and returned to the court pursuant to the provisions of the law, by officers acting under the color of lawful authority; and they were in all respects duly qualified and competent to act as petit jurors in and for the county of Albany. According to the decisions above cited, the objection was properly disallowed, because the officers through whose action the jurors were selected, drawn and summoned were officers defacto, if not dejxtre • officers in possession of office, acting under color of lawful authority.
It should be added, perhaps, that section 562 of the Code of Criminal Procedure fully answers the objection interposed to the panel of trial jurors, if it be admitted that the case comes within its provisions.
It follows, therefore, that without considering the question as to the constitutionality of the act of 1881, the conviction and judgment appealed from must be affirmed.
Mem.— The decision in the case against the defendant for grand larceny disposes of this case also.
It should be noted, however, that this case is undeniably subject to the provisions of the Code of Criminal Procedure, which went into effect before the offense charged in the indictment was committed.
Conviction and judgment affirmed.