— I concur in the opinion of Justice Brickell, and, as a supplement to it, I read the following expression of my views on points not directly treated of by him.
The indictment charged the defendant, under R. C. § 3564, in three counts, with accepting a bribe as solicitor of Dallas County. On the trial he denied his character as such solicitor, basing the denial on the fact that another was, at the time the offence was alleged to have been committed, the duly elected and qualified incumbent, and two persons could not hold the said office and perform the duties thereof at the same time. The state Constitution created the solicitor’s office ; and it requires that he shall be elected in each county by the electors thereof, and shall perform such duties as may be required of him by law. He shall hold office for a term of four years; and in case of vacancy, such vacancy shall be filled by the judge of the circuit, until his successor is elected and qualified. The legislature has not prescribed the duties of this officer. All of the statutes in the Revised Code relate to the circuit solicitor then in existence. Many of them are inapplicable to the present county solicitor; and such of them as have been applied to him in practice and usage have been so applied on account of their fitness to. the acquired meaning of the term “ solicitor,” as a political officer of the State, rather than from any presumed or construed regulation of his duties by the legislature.
Section 859 of the Revised Code, in authorizing the presiding judge, when the solicitor is absent, or it would be improper for him to act, to appoint a competent attorney in his place, only recognizes, or declares, what is the inherent right of the court. The court, as the guardian of justice, is the representative of all suitors, and, in criminal cases, it can suffer neither the State nor the accused to be undefended. As this section (859) was not adopted in direct application to the county solicitor, and is a part of the regulation of a distinct officer, it cannot have the effect to limit or vary the power which the court has inherently to supply the place of the county solicitor who for any cause is not acting. As the Constitution bestows the *325power of appointment, in case of a vacancy, on the judge of the circuit, and it is the duty of that judge to see to the proper enforcement of the criminal law, both in term time and in vacation, except when he is displaced in term time by a presiding judge, an appointment of solicitor made by him at any time cannot technically be said to be void. The duties of solicitor are not confined in performance to the terms of the court; for instance, he must issue subpoenas in vacation to witnesses to appear before the grand jury. When he is not acting, unless the judge of the circuit can supply his place, no other is authorized to do so, and there must be a failure of justice. The conclusion is, that the judge of the circuit, from his power to appoint to a vacancy, and his duty as a conservator of the peace, must be authorized to supply any lapse in the service of the solicitor; and that, having jurisdiction of the subject matter, no appointment he may make is ip>so facto void, however irregular and subject to be set aside. If, then, the party appointed accepts the position, and performs the duties of the office, and while in the exercise of the rights, privileges, and responsibilities thereof, commits, as such officer, what the law denominates crime, he cannot defend on the ground that he was not solicitor de jure.
As to whether the defendant was appointed to the office charged in the indictment to have been held by him, the transcript shows the following: “ April 1st, 1870. Ordered, J. S. Diggs, Esq., act as solicitor pro tem. of this court, until further ordered.” “ At Chambers, October 17th, 1870. Ordered, That the order heretofore made appointing Sheppard S. Diggs solicitor pro tem. of this court until further ordered, be hereby revoked, and that S. W. John be appointed solicitor pro tem. until further order.” Whether the appointment thus made ought to be construed as filling entirely the office of county solicitor temporarily of not, it authorized the appointee to act as such in matters pertaining to the Circuit Court, and was color of title for as much more as he assumed to do. Therefore, proof of such an appointment, and of acceptance and service under it by the defendant, would constitute him a defacto county solicitor, and subject to prosecution for malfeasance.
That a de facto officer is subject to all the pains and penalties of a de jure officer is abundantly shown by the following authorities: 1 Bish. Crim. Law, § 917; 2 Bish. Crim. Law, § 378; 1 Gab. Crim. Law, 783; The State v. McEntyre, 3 Ired. 171, 174; The State v. Sellers, 7 Rich. 368, 372; People v. Cook, 4 Seld. 67; Rex v. Borrett, 6 Car. & P. 124; 3 Hawkins Pl. C. 261, § 28.