I fully concur in the foregoing opinion of the majority of the court except so far as it holds that the acting ■judge of the police court was a judge defacto. I cannot concur with the majority upon this point for the following reasons.
An officer defacto is one who has the color of right or title to the office he exercises—one who has the apparent title of an officer de jure. This case differs from all the cases that have been cited, where courts have held officers to be defacto in character, in this; in all those cases the appointing or electing power had ample authority to make some election or appointment to the office; but here it is not only coneeded by the majority of the court, but they in fact hold, that the law purporting to authorize the court of common council of the city of Hartford to elect the judge in question was unconstitutional and void, and consequently conferred no authority to elect any person whatsoever to the office. It will be conceded that if no law had been passed upon the subject, and the court of common council had acted in the premises as they now have, the judge in question could not be regarded otherwise than as an usurper. The question then arises, does this unconstitutional law confer upon the common council color of authority to elect this judge ? They must have color of authority to make the appointment, in order to confer upon the appointee color of title to the office. This must be evident, for the common council cannot bestow what they have not to give. They must therefore have color of authority, in order to confer color of title, which is another term for color of authority.
Now, according to the opinion of the majority of the court, the constitution declares, in express and mandatory terms, *452that the judge of this court shall he appointed by the legislature, as much as it does that a judge of the Supreme Court of Errors shall be so appointed. This by necessary implication prohibits an election by any other body. Hence the case could not be stronger if the constitution declared in express terms that the common council of Hartford should have no power to elect a judge of this court. How then stands the case ? The law and the constitution are directly in conflict. What the one prohibits, the other declares may be done. If they were of equal authority the one would annul the other, and neither would be capable of conferring color of authority. This is evident, for if one is to be obeyed in preference to the other, one must have the supremacy, or appear to have ; hence, if both are equal in authority, and it so appears, both must be powerless to confer the semblance of authority when palpably in conflict; or we have the absurdity of an injunction to do, and not to do, at the same time. Suppose the constitution was silent on the subject, and the law in question was inconsistent with itself; that one section authorized the common council to elect the judge, as it does now, and another section declared that the legislature only should make the appointment; would it be contended that the law gave the common council color of authority to act in the premises ? And is the case less strong for the defendant because the constitution, instead of a section of the same act, dcclaics that the appointment shall be made by the legislature ?
The constitution is supreme over the legislature and all its enactments. It makes void whatever the legislature does in conflict with it. It declares that the judge of this court shall be appointed by the legislature. The legislature declares that the common council of Hartford shall make the election. Which has, or appears to havé, the supremacy ? Which confers, or appears to confer, authority ?
A law passed by the legislature cannot have color of authority unless it appears primé faeié to be law ; and it cannot so appear if it is manifestly repugnant to the constitution. A law of doubtful constitutionality may be presumed to be constitutional till judicially decided to be otherwise. But here *453no doubt can be entertained. The majority of the court do not suggest any. The language is plain and explicit. Suppose the legislature should pass a law giving authority to the common council to appoint a judge of the Supreme Court of Errors, is it so that the law would appear primá facié to be law, or have the semblance of authority, when the higher law declares, in so many words, that it shall be done by the legislature ? It seems to me, if anything is too clear for controversy, it is that such a law would be void upon its face, and unable to confer the appearance of authority. If this is not so, if the plain provisions of the constitution can be thus set at naught for the time being, and till the state by its proper officers shall see. fit to interfere by a proceeding of quo warranto, and till judgment of ouster shall be regularly pronounced through the slow process of the courts, then personal protection from legislative aggression is not so well secured^ as it is generally supposed to be. The framers of the constótution sought to make the judicial branch of the government independent of the legislative; and to this end they provided for the perpetuity of the Supreme Court of Errors, and of the Superior Court, and prescribed the mode for the appointment: of the judges, in order that the legislature might be held in, check, in cases of emergency, and the constitution be rigidly maintained; but if the judges may be appointed in any other way that the legislature may see fit to adopt, and the judges thus appointed be judges in fact till regularly set aside, the framers of the constitution have been unsuccessful in their efforts. If this may be done, I see no reason why the legislature may not abolish the courts themselves for the time being, and establish others in their places, until the abolishing law shall be judicially determined unconstitutional; for certainly the provision establishing the courts cannot be of more importance or binding authority than the provision organizing the courts when established.
If therefore the courts may be unconstitutionally organized, and still be courts for the administration of justice, as the majoi'ity of the court hold, it seems to me they might be unconstitutionally abolished for the time being as.easily as *454they could he unconstitutionally organized. If the law in the one case would be primd facie law, and have color of authority, so it must be in the other, and the Supreme Court of Errors would be primd facié out of existence, and its judges therefore disqualified to decide whether it had existence in fact or not. That question would have to be determined by the unconstitutional court established in its place, if one should be established; for, according to the argument, that would be the only court of last resort primd facié in existence. To this conclusion we must come, if the majority of the court are right in holding that a law of the legislature is primd facié law and has color of authority, however repugnant to the constitution it may be.
Again, it is familiar law that if a court has not jurisdiction of the process, or subject matter in controversy, in a particular case, its proceedings are coram non judice. This is true in relation to courts lawfully constituted. ‘ Why then may not the jurisdiction be contested for a much stronger reason —the manifest unconstitutional organization of the court itself, showing that it has no lawful jurisdiction whatsoever ? In the case of The People v. White, 24 Wend., 520, one of the questions was whether the aldermen of the city of New York could act as judges of the court of oyer and terminer, inasmuch as they had not been appointed judges of that court in the mode prescribed by the constitution, but were constituted ex officio judges of that court by the statute law of the state. Chancellor Walworth, in giving his opinion in the case, says:—“ Should the executive or the legislature, either by a public statute or otherwise, assign the duties of judges of the Supreme Court to the several clergymen of the city for the time being, or attempt to authorize them by virtue of their clerical offices to be judges and to hold the Supreme Court in violation of the constitution, such clergymen would not be judges of that court defacto, so as to make their judgments valid or binding upon the parties thereto. * * * If the aldermen as elective officers were constitutionally incompetent to hold a court of oyer and terminer in conjunction with the circuit judge or the first judge of the court of *455common pleas, then the law which in terms attempted to confer on them such a power, was unconstitutional and void, and it conferred no power whatever. * * * The constitution is the paramount law to which all courts in the exercise of their judicial powers must bow, notwithstanding any legislative enactments to the contrary. It is not necessary in this case to say that the judgments and proceedings before every tribunal illegally constituted, and in direct violation of a constitutional prohibition, are absolutely void ; so that the judges of the court, and all those who had attempted to execute the process issued by them, would be liable as trespassers. But in deference to the constitution which we have all sworn to support, I must declare as my deliberate opinion, that when the judgment of such a tribunal is properly brought before this court for review, on a writ of error, if the unconstitutional organization of that tribunal fully and distinctly appears upon the record, it is the duty of this court to reverse or annul that judgment.” The chancellor did not go farther in the case than he was required to go, but he went far enough to decide that the aldermen were not judges de facto of the court of oyer and terminer, notwithstanding the statute law attempted to constitute them judges de jure.
Senator Yerplanck, in the same case, and upon the same subject, thus remarks:—“ I can neither regard it as sound law or wise public policy, any more than as consistent with a republican regard to the rights of private citizens, to hold that the trial of the question of the constitutional or legal power of any officer or judge should depend solely upon the discretion of the attorney general, and remain unquestioned until he impeaches it in the name of the people; whilst the citizen, upon whom such unlawful authority acts immediately, and may bear hardly, has no means of defending himself, and appealing from this, the greatest of all errors that can occur. If, therefore, in this case the composition of the court be such as would upon information filed by the attorney general be pronounced unconstitutional, I cannot doubt but that the same question may be directly brought up in error *456by the prisoner denying the jurisdiction whilst his case is still open and undecided.”
The legislature of Kentucky at one time attempted to abolish the court of appeals ordained and established by the constitution of the state, and create a new court in its place. The constitutional court of appeals held in the case of Hildreth’s Heirs v. M’Intire’s Devisee, 1 J. J. Marsh., 206, that although the new legislative tribunal “ assumed the functions of judges, and clerks, and attempted to act as such, their acts in that character were totally null and void, unless they had been regulárly appointed under and according to the constitution.” * * * “ They were not the encumbents of de jure or de facto offices, nor wore they de facto officers of de jure offices. They had no official rights and powers.”
This case is in point, and is decisive of this question, if admitted to be law.
Chitty, in his first volume on Criminal Law, page 744, says:—“ If a sentence is passed by a person who has no valid commission to judge the parties, it is void, and may be altogether set aside without a writ of error.” The same,doctrine is held in 3 Inst., 231, Plowd., 390, Bulst., 101, and 4 Bla. Com., 394.
In regard to what constitutes an officer de facto, Judge Hinman, in Douglass v. Wickwire, 19 Conn., 489, says :—“ The public and third persons are not required to ascertain the legality of an officer’s election or appointment; it is enough if the officer acts under color of an election or an appointment by the only body which has the power to make it.”
The majority of the court say that this last remark of the judge is a dictum, and was not intended to be as broad as the language imports. Whether a dictum or otherwise, it is all that the late Chief Justice says in giving the opinion of the court, bearing upon this question there in controversy. And whether a dictum or otherwise, I submit that it is the true doctrine, with perhaps this qualification: it is enough, if the officer acts under color of an election, or an appointment, by the only body which has the power, or jorimá facié power, to make it.
*457This rule harmonizes with all the authorities cited by the majority of the court, and by counsel on the trial, and, I submit, is strictly correct. I concede that the public and third persons are not bound to look further than to know that the body making an election or appointment is clothed with f rimáfacié authority to act in the premises and has so acted. They are not required to look beyond what appears upon the face of the case; but so far the officer and third persons are required to inform themselves in order to justify action under the election or appointment; then, if the election or appointment is defective on account of some collateral matter not apparent on the face of the proceedings, the officer is one de facto.
Take the case of Fowler v. Bebee, 9 Mass., 231, referred to by the majority of the court. The defect in the sheriff’s appointment was collateral, and could be ascertained only by investigation. The law gave the governor power to appoint a sheriff, and the defect was, that the appointment was made before the law creating the county took effect. But how could third persons know when the appointment was made ? After the law came in force they saw a man exercising the duties of the office of sheriff. They ascertained that the law gave the governer power to appoint a sheriff for the county, and that the appointment had been made. Manifestly, the presumption would be that the power had been duly exercised.
So it may be said of the case of Douglass v. Wickwire, cited from our own reports. Third persons having an interest in the question were bound to know that towns had am thority to elect grand-jurors, and that the one in question had been elected. These facts were sufficient to raise the presumption of a lawful election. They wei’e not required to examine and ascertain whether or not six other grandjurors had been elected, and duly elected, before the one in question. These facts could be known only by investigation. They did not appear upon the face of the case.
So it may be said of all the other cases cited by the majority of the court. The defect in each of them is collateral, and could be ascertained only by examination. Take the *458case of The People v. Dean, 3 Wend., 438, where a minor was appointed to office; or the case of M’Instry v. Tanner, 9 Johns., 135, where a minister of the gospel was elected to an office to which he was ineligible ; or the case of Morris v. The People, 3 Denio, 381, where a judge was appointed by a legislature without a quorum. These are plain cases of officers de facto. The defect in each of them consists in the existence of a collateral fact, which in the first instance would be presumed not to exist. When the legislature pass a law, or elect a person to office, the presumption is that a quorum was present. When an appointment is made, the presumption is that the appointee is not disqualified by reason of minority; or ineligible by reason of being a minister of the gospel; or unduly elected by reason of being the seventh grand juror numerically in the order of election ; | or improperly appointed, by reason that the appointment was made a little sooner than it should have been, as in the case in the 9th of Massachusetts Reports.
These cases cited by the majority of the court fall far short, it seems to ine, of sustaining the position that a law of the legislature is primá facié law, when the supreme law of the constitution, which all are bound equally to know, is directly and palpably in conflict with it. The law in question is confessedly unconstitutional. Can it be presumed constitutional ? It must be so presumed in order to be primá facie law. It must be primá facié^ law in order to confer upon the common council color of authority. The common council must have color of authority, or the acting judge of this court has no color of title.
I think judgment should be advised for the defendant: