On Motion to Vacate Order Denying Rehearing Denied.
Cole, J.,District Judge. By an opinion of this court filed December 2, 1916, ante, 479, 160 N. W. 705, this court affirmed the judgment *514of the trial court. A petition for rehearing was filed on December 22, 1916, and on December 28,1916, an order was entered denying a rehearing. The remittitur was thereupon transmitted to, and judgment entered thereon in, the district court. On January 2, 1917, the plaintiff filed a motion to vacate the order denying a rehearing. Such motion is based on the following grounds: “That Judges Disk, Burke, and Goss participated in the deliberations of the court and in the decision denying the application, and were not judges of this court at said time, their term of office having expired upon the first Monday in December of thé year 1916, and the said three persons constituting a majority of those assuming to act as the supreme court of this state, and being without legal right or authority to so act, the order denying the said motion was without authority of law and void.
“That the said order amounts in effect to a complete denial of justice in 'the above-entitled action, no fair hearing upon the merits having ever been allowed in this action in this court.”
On the 5th day of January, 1917, this court made the following order:
“Ordered, Further, that the said motion of the said Arthur LeSueur and- all matters pertaining thereto to be heard before the supreme court of this state at the Capitol on Tuesday, January 16th, at 10 o’clock A. M.”
On the 16th day of January the court assembled, with four judges present, and upon request of counsel for plaintiff and appellant the court adjourned to January 17th, 1917, at 10 o’clock a. m., at which time five judges were-present: District Judges J. M. Hanley and A. T. Cole sitting by request in the place of Judges Birdzell and Grace, who regarded themselves as disqualified.
On said 17th day of January, 1917, arguments on the part of counsel for plaintiff and appellant and counsel for defendants and respondents were heard.
The first reason assigned for asking that the order denying the application of the appellant for a rehearing should be set aside and vacated, and the rehearing granted, is that Judges Fisk, Burke, and Goss participated in the deliberations of the court and in the decision denying the application, and’were not judges of this court at said time, their term of office having expired on the first Monday in December of the year 1916, and that they had no legal right or authority to act, and there*515fore the order denying said motion for a rehearing was without authority of law and void.
The reason thus presented for a vacation of the order denying a rehearing presents the identical question which was considered and determined by this court in State ex rel. Linde v. Robinson, ante, 410, 417, 160 N. W. 512, 514. The plaintiff contends, however, that the opinion in State ex rel. Linde v. Robinson, ante, 410, 160 N. W. 514, is of no force or effect, and does not constitute an opinion of this court for the reason that it was promulgated by four district judges purporting to sit and act as judges of the supreme court, and it is contended that the supreme court cannot be constituted wholly of district judges. This question was considered in the opinions above referred to, and a contrary conclusion announced therein. We have again reviewed this question, however, and the court as now constituted are of the opinion that a district judge when called to sit in a cause pending in the supreme court becomes for all purposes of that cause a judge of the supreme court, and as such is invested with the same power and impressed with the same duties and obligations as those possessed by and imposed upon a person regularly elected a judge of the supreme court. And in our opinion the people have in § 100 of the Constitution designated the persons from whom justices of the supreme court may be chosen to take the place or places of any or all of the justices of the supreme court in any cause wherein any or all of such justices may be disqualified. The section of the Constitution referred to must have a reasonable and effective interpretation, and therefore if it should so happen, as it may happen, that for some reason all of the justices of the supreme court shall feel themselves disqualified to sit in any particular cause, a full number of judges of the district court may be called in, who, for the purposes of the cause in which they are sitting, are clothed with the full power of the regularly elected and sitting justices.
It is also suggested that the opinion in State ex rel. Linde v. Robinson, ante, 410, 160 N. W. 512, wherein Justices Bruce and Christianson participated, is inconsistent with the opinion in the same cause promulgated by the'four district judges sitting as justices of this court, and published in ante, 417, 160 N. W. 514, for the reason that the former opinion held “that Justices Bruce and Christianson ought to be relieved from participating in the hearing of the merits of the controversy unless the contend*516ing parties insisted upon their participation/’ while the subsequent opinion, published in ante, 417, 160 N. W. 514, shows that objection was made to the jurisdiction of the court as then constituted. It is therefore contended that Justices Bruce and Christianson ought to have participated in the latter decision. We have carefully examined the record and find that this contention is wholly untenable. It is true, the justices elect filed written objections to the jurisdiction of the court, but such objection in no manner either suggested or requested that Justices Bruce and Christianson participate in the determination of the controversy. On the contrary, it was specifically asserted in the written objections so filed that “Justices Bruce and Christianson are equally interested in the outcome because it affects their term of office.”
The position assumed by counsel for the justices elect was: (1) That all the members of the supreme court had a sufficient interest in the controversy then pending to disqualify them from participating. (2) That the supreme court of this state cannot consist solely of district judges called in to sit in places of disqualified justices of the supreme court, but that one or more of the regularly elected justices of the supreme court must necessarily participate in the decision of each cause. If this contention was carried to its logical conclusion, it would follow that in any cause in which the justices of the supreme court were disqualified one or more of such justices must sit as a judge in his own cause, or else justice be defeated because no tribunal existed to settle the controversy. Such construction of § 100 of the Constitution would tend to defeat the obvious purpose of its enactment, and convict its framers of having intended to negative, and in certain cases destroy, the very object they sought to promote.
And while we are not directly concerned with the decision in State ex rel. Linde v. Robinson, ante, 417, 160 N. W. 514, and find it unnecessary to express either our approval or disapproval of the principles of law therein announced, we are all agreed that that decision, promulgated by four district judges sitting as judges of the supreme court, is in fact the opinion of the supreme court of North Dakota, and entitled to the same consideration as though it had been promulgated by four regularly elected justices of the supreme court.
The question whether the terms of office of Judges Fisk, Burke, and Goss expired on the first Monday in December, 1916, or the first *517Monday in January,- 1-917, is not involved in the instant ease, however. The question is whether they were in fact either de jure or de facto judges. And we are all agreed that they were in any event officers de facto.
The authorities generally recognize that the three essential requisites of an officer de facto are:
1. The office held by him must have a de jure existence, or at least one recognized by law.
2. He must be in the actual possession thereof; and,
3. His holding must be under color of title or authority. Constantineau, De Facto Doctrine, §§ 26 et seq; 29 Cyc. 1389 et seq.
In the case at bar the existence of the de jure office is conceded. Consequently, Fisk, Burke, and Goss were de facto judges provided:
1. They were in possession of the office.
2. Were holding over under color of title or of authority.
There can be no question whatever about the first proposition. They were concededly in possession of their respective offices, and Avere at no time dispossessed. .They were recognized as incumbents of such offices by the clerk, marshal, and reporter of the supreme court, as Avell as by Justices Bruce and Christianson, the two hold-over judges whose membership in the court Avas not in dispute. They occupied the official chambers set aside for justices of the supreme court and formerly occupied by them in the state capitol. They were also recognized by the various executive officers as incumbents of the offices. For instance, Chief Justice Fisk was recognized by the board of pardons; the state auditor and state treasurer, respectively, recognized their incumbency, and Avarrants for their salaries were drawn by the state auditor, and paid by the state treasurer. They were also recognized by the various litigants and attorneys having business in the supreme court of the state of North Dakota and the various public officers required to transact business with the court. The record fails to show a single case wherein their authority to act during the month of December was questioned by any litigant or attorney. In fact the attorneys for the plaintiff in this case in the petition for rehearing made no objection to the disposition thereof or consideration of the same by the court as then constituted.
There is no question of the original authority or legal warrant of Justices Fisk, Burke, and Goss to occupy their respective offices. They *518received their authority directly from the people, and in accordance with a practical construction of the Constitution, concurred in by every member of the court for a quarter of a century, and in which they concurred, when they assumed their respective offices, they claimed the right to exercise the duties of their respective offices during the month of December. They were never ousted from possession, but continually remained in possession of, and were apparently and to all intents and purposes in full possession of, their offices, and continued to exercise the duties thereof. In addition to this, the decision in State ex rel. Linde v. Robinson, ante, 417, 160 N. W. 514, filed December 11, 1916, held that Justices Fisk, Burke, and Goss were in fact de jure officers, and entitled to hold and occupy their respective offices as a matter of right.
If it be assumed that Fisk, Burke, and Goss were not de jure judges, it still seems manifest that they were de facto judges. In fact it is hard to conceive of a case more clearly within the de facto doctrine. And the fact that the acts of officers, de facto, and not de jure, are binding, is well settled by a uniform line of decisions, unbroken practically by adverse decisions, where the officers are de jure, and this has been held in many instances where the office or offices themselves were not in fact de jure.
In this connection it will be well to note a few of the léading decisions, among which is the case of Lang v. Bayonne, 15 L.R.A.(N.S.) at page 93, and numerous cases therein cited. In our own state the matter has. been up for decision and decided by our own court in the case of the State ex rel. Bookmeier v. Ely, 16 N. D. 569, 14 L.R.A.(N.S.) 638, 13 N. W. 711, and also in the case of the State v. Bednar, 18 N. D. 484, 121 N. W. 614, 20 Ann. Cas. 458. In the first mentioned case the following language is used: “The books are full of cases attempting to define a de-facto officer; but it is generally conceded that no precise definition can be given fitting all cases, and that each case must be.determined largely upon its own facts. We have carefully examined a great number of authorities on this subject, and, as to the reason for courts holding officers illegally in possession of an office officers de facto, and their acts valid, find that the statement of this doctrine most generally accepted is contained in Plymouth v. Painter, 17 Conn. 585, 44 Am. Dec. 574, where the court says: ‘The principle established in these *519cases in regard to the proceedings of officers de facto, acting under color of title, is one founded in policy and convenience, is most salutary in its operation, and is, indeed, necessary for the protection of the rights • of individuals and the security of the public peace. The rights of no person claiming title or interest under, or through the proceedings of an officer having au apparent authority to act would be safe if he were obliged to examine the legality of the title of such officer up to. its original source, and the title or interest of such person were held to be invalidated by any accidental defect or failure in the appointment, election, .or qualification of such officer, or in the rights of those from whom his election or appointment emanated. Nor could the supremacy of the laws be maintained, or their execution enforced, if the acts of the officers having a colorable, but not legal, title, were to be deemed invalid.’ ”
This case also cites the case of the State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409, and the case of People ex rel. Norfleet v. Staton, 73 N. C. 546, 21 Am. Rep. 479.
In Brown v. O’Connell, 36 Conn. 432, 4 Am. Rep. 89, it is held that an officer in possession of an office, although appointed by a body without authority to make the appointment, is an officer de facto.
The case of Brady v. Howe, 50 Miss. 607, holds that a person appointed to the office of judge, although the governor had no legal authority to make the appointment, for the reason that the office was filled by one whom the governor had no power to remove, was nevertheless an officer de facto.
In the case of the State v. Bloom, 17 Wis. 521, it was held that if a person is convicted and sentenced at a term of court held by a person exercising the office of judge of such court under appointment of the governor, and without authority of law, there being no person entitled to exercise such office, the sentence is nevertheless valid and binding as against collateral attack by habeas corpus.
■In McOraw v. Williams, -33 Gratt. 510, a person elected as judge and commissioned as such entered upon the duties of the office in the belief that his term commenced immediately, and he was held to be a de facto officer, notwithstanding that his term did not legally commence until a considerable later date, and his predecessor’s term had not expired.
*520In the case of Ex parte State ex rel. Atty. Gen. 142 Ala. 87, 110 Am. St. Rep. 20, 38 So. 835, the court passed upon the matter of the state of Alabama having created a judicial circuit and the office of judge thereof by an unconstitutional and void statute, but independently of the statute there was in a certain county a circuit for that county and a circuit judge. The judge commissioned by the governor under the void statute attempted to exercise the duties of the office of circuit judge of the county in question, and it was held that he was an officer de facto, and his acts valid.
In the case of Cleveland v. McCanna, 7 N. D. 455, 41 L.R.A. 852, 66 Am. St. Rep. 670, 75 N. W. 908, it was held that “it is well settled that the validity of the acts of a de facto officer cannot be attacked in a collateral proceeding.”
In the case of the State v. Bednar, heretofore cited, the previous decision in the ease of the State v. Ely, heretofore cited, was affirmed, and in it the court quotes from the case of Coyle v. Com. 104 Pa. 117, 4 Am. Crim. Rep. 379, and among other language the following: “A judge de facto assumes the exercise of a part of the prerogative of sovereignty, and the legality of that assumption is open to the attack'by the sovereign power alone. If the question may be raised by one private suitor, it may be raised by all, and the administration of justice would, under such circumstances, prove a failure. It is not denied that Judge McLean was a judge do facto, and, if so, he is a judge de jure as to all parties except the commonwealth.”
In the case of Cole v. Black River Falls, 57 Wis. 110, 14 N. W. 906, the following language is used: “If the offices exist de jure, then it is the settled doctrine of this court, as well as of other courts, that all persons who are in the exercise of the duties of such offices by color of' law are officers de facto, and their acts are valid. And the fact that they are in by color of a law which is unconstitutional and void, does., not make an exception to the rule.”
No law ever contemplated an interregnum or hiatus in office. Every government instituted and its several subdivisions in this country have been instituted and are maintained upon the idea that the working form or forms of such government or governments, the different instrumentalities, making up the executive and judicial branches, shall continue to operate without there being any measure of time when such executive. *521or judicial branch has no working power and no official acting for it. This purpose in governments like ours is that all changes, if changes are made, shall be made peacefully and without revolution, and to assure this there must at all times exist within the executive and judicial branches of the government a working power, sometimes it may be without being de jure in fact, but, nevertheless de facto, exercising de jure powers for the time being, and which the people are bound to respect, and the acts of which are binding upon the constituted members of each particular branch or subdivision of government.
Were it otherwise our county would be subjected to the uncertainties of complete change, and revolutions so characteristic in the past of many of our Central and South American governments and even our neighboring nation to the south, unfortunate Mexico.
In the case of Ball v. United States, 140 U. S. 118, 35 L. ed. 377, 11 Sup. Ct. Rep. 761, the opinion being delivered by Chief Justice Fuller, the following language is used: “We are of the opinion that the irregularities alleged did not place Judge Boarman, in holding the October term, in any other position than that of a judge de jure, and that as to the April term he was judge de facto, if not de jure, and his acts as such are not open to collateral attack.”
This part of the opinion is followed by numerous citations, including a number of different states.
In the case of McDowell v. United States, 159 U. S. 596, 40 L. ed. 271, 16 Sup. Ct. Rep. 111, the opinion being written by Justice Brewer, it is stated that “the rule is well settled that where there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto and. binding upon the public.”
In the case of Byer v. Harris, 77 N. J. L. 304, 72 Atl. 136, the following language is used: “Whether he was authorized to hold the court at the time, or at all, Avas of no moment in this proceeding, as he was.a de facto magistrate, whose proceedings cannot be attacked in this way in these proceedings.”
This was the case of a. police magistrate, and the court holds, as seemingly all courts do, that to try the title to an office one xiiust, through the medium of the commonwealth, secure or initiate the proceed*522ings under quo warranto, and the title never can be tried in a collateral proceeding or by collateral attack.
The question of the power of de facto officers to act and their acts being valid has been considered by the courts of practically every state in the Union and the binding character of the acts of de facto officers sustained, not only as to judicial matters, but as to nearly all classes of offices, superior or inferior, which go to make a part of national, state and municipal governments.
There must be a finality in all matters litigated in the courts of this state, as well as the courts throughout the entire United States. The supreme court is the court of last resort, and it, being the court of last resort, must finally determine and settle all matters before it. If, because it may happen that justice may not have been absolute or equal in some case or proceeding as a matter of fact, one may come into court after a final legal determination of the issue as provided by the people themselves through their Constitution and laws, and reopen any particular case and again bring it into being, then there will be no finality in any legal proceeding, no security of title, and any and every decision of a court of final resort will be in its nature but a temporary, rather than a final and absolute, determination, and no controversy could ever be said to be set at rest.
No human institution has ever been devised that could ever and always balance the scales of justice between two contending parties. Absolute justice cannot be looked for so as to evenly balance the scales at all times and in all matters between parties who are at issue as to their respective rights. . If there could be an equal and exact balancing of justice and right between contending humanity, then there would be no need of courts, because there would be no controversy for courts to settle.
Many an issue that has a final determination in the court or courts of last resort may leave some doubt in humanity as to whether or not justice has been done and the scales evenly balanced in trial and appellate courts. This is but the exemplification of the imperfections of-humanity, and illustrates the fact that there must be a finality and a final determination of issues, and the question of exact and equal 'justice cannot forever continue to keep open a controversy, and never end. '
Courts have been so emphatic in insisting upon a final determination *523that even so important-a matter as the conviction and sentence of a man to be executed has not been permitted to be attacked collaterally, but such conviction and sentence upheld and the sentence carried out under the affirmance and direction of the supreme court, even where it may be that the trial judge might have been ousted from his office under quo warranto.
.The case of the People v. Sessovich, 29 Cal. 480, is an illustration ■of this fact. There the defendant was convicted and sentenced to be hung, and an appeal was made to the supreme court of that state, the ■questions on appeal having, among other questions, a challenge as to the trial judge having a right to his office. The court in that case held that that question could not be raised in a collateral way, and affirmed the judgment. Among other language used in that case was the following: “The acts of de facto officers must be held valid as respects the public and rights of third persons. A contrary doctrine, for obvious reasons, would lead to most pernicious results.”
In the case of the State v. Brown, 12 Minn. 538, Gil. 448, the defendant was indicted for murder in the first degree and found guilty of murder in the- second degree. On appeal to the supreme court the question was attempted to be raised as to the right of the trial judge to hold his office. The right to attack in this collateral manner was denied, and among other language used in the opinion is the following: “Whether the judge’s term of office had legally expired is a question that cannot be decided in this action. He was, at least, an officer de facto, and tmtil his right to the office is settled by a direct proceeding for that purpose it cannot be legally questioned in a collateral proceeding.”
In the case of Joseph v. Cawthorn, 74 Ala. 411, Judge Somerville used the following language: “There is no distinction in law between the official acts of an officer de jure, and those of an officer de facto. So far as the public and third persons are concerned the acts of the one have precisely the same force and effect as the acts of the other. The only difference between the two is, that the latter may be ousted from his office by a direct proceeding against him in the nature of quo warranto, and the former cannot. Their official acts are equally valid. The rule is one which is dictated alike by principles of justice and public policy. It would be a great hardship if innocent persons were made *524to suffer by the unknown negligence of officials who, under color of office, were daily holding themselves out to the public as officers de jure.” See also Com. v. Wotton, 201 Mass. 81, 87 N. E. 202.
In the case of the State ex rel. Knowlton v. Williams, 5 Wis. 308, 68 Am. Dec. 65,-the following language is used: “Courts take notice of accession to office of officers under the Constitution, and while they ^ remain in office and exercise the duties thereof, regard them as officers de facto. Generally, as respects third persons, the acts of an officer de facto are to be recognized as valid.”
We have cited these last-mentioned cases in connection with the matter of the finality of proceedings in the appellate court. There must be an end to litigation, there must be a final determination of the rights of litigants, and for this purpose appellate courts are created. If, after a case has been finally determined, and disposed of in the appellate court provided by the Constitution and laws of a state, it may be recalled and again reheard, there would be no end to controversies between parties or litigation, there would be no final determination as to rights or titles, and all rights, both of a personal and property nature, would at all times be insecure. If, after a final determination, a matter may be recalled because some one feels that justice has not been equally balanced, then if two parties were at issue upon the question of title to land, for illustration, when the appellate court had finally determined the title and disposed of it, such title would still be insecure and unsafe and liable to be changed and reversed on a recall of the litigation, because some one came into court claiming injustice at some point in the litigation.
It may not be improper in this connection to advert to the fact that during the year 1916, particularly, the year just passed, when the litigation in the ease under consideration was had, there was tense civil contention between different elements of the people in the state upon the proposition of radically changing the governmental ideas of our commonwealth. This tense contention necessarily to a greater or less extent prevented a large number of citizens of the state from giving the calm and judicial consideration to matters involved in litigation and the interests of the people generally that would help arrive at just and reasonable conclusions, and for this reason there perhaps crept into. *525the ease we are now considering in this opinion a feeling of rivalry where there should have been a mere matter of disputed right.
Judges Fisk, Burke, and Goss were continuing to hold their offices during the month of December as the justices of the supreme court had continued to do from statehood up to the present time. They were working under the sanction, not only of their oaths as justices of the supreme court, but the precedent established and maintained from the beginning of statehood.
This court is invested with three separate and distinct grants of jurisdiction: 1. Appellate jurisdiction. 2. Superintending jurisdiction over inferior courts. 3. Original jurisdiction in certain causes involving questions publici juris, and affecting the sovereignty of the state or its franchises or prerogatives or the liberties of its people. Const. §§ 86, 87.
In this case the appellate jurisdiction alone is involved. The Constitution provides that this jurisdiction he exercised under such regulations as may be prescribed by law. Const. § 109.
When an appeal is taken, the supreme court becomes invested with jurisdiction. It retains such jurisdiction until the cause is disposed of and the' remittitur sent down to the court helow. Can it afterwards reinvest itself with jurisdiction ? We think not unless it appears that remittitur was sent down through inadvertence, mistake, or fraud. And when it appears that after decision the remittitur is sent down intentionally in accordance with the court’s order properly made in the usual way, the supreme court loses all control over the cause, and cannot subsequently recall the remittitur any more than it may ask that a cause be forwarded to it for decision in which no appeal has been taken. See State v. Sund, 25 N. D. 59, 140 N. W. 716; Hilemen v. Nygaard, 31 N. D. 419, 154 N. W. 529, Ann. Cas. 1917A, 282.
This court has been appealed to from what is claimed to be the standpoint of justice. Bpon argument counsel for plaintiff and appellant strenuously insisted that gross injustice had been done their client. In fact the leading counsel for the plaintiff and appellant made his principal argument upon that contention. He asks this court to now set aside and vacate the order denying a rehearing and recall the remittitur. To do so would be to lay aside for the purpose of this one cause the well-settled rules of finality of this court and upon the plea *526of miscarriage of justice by one of tbe contending parties to wipe out .the finality that is provided for every cause that conies to this court, and upon this occasion to set it aside and again open the doors to another contention and another decision which undoubtedly would, no matter whether it would sustain the former decision of this court or otherwise, still leave one party or the other feeling that gross injustice had been done.
Nearly every cause brought before this court has interpreted into the argument made by counsel for contending parties a plea alleging injustice, and usually gross injustice. Were such pleas to be the basis for the determination of this court, undoubtedly most of the litigation brought here for final determination would be long continued, uncertain, and in some cases almost never ending. Such a practice or precedent cannot be established. This being a court of final resort, when it has once acted and made a final determination of a cause and the remittitur sent down in the regular manner as in the case at bar, there would have to be very exceptional reasons, such as do not now suggest themselves, to set aside and vacate a final determination and to bring the issues back into this court.
While we do not believe that this court has any power to reinvest itself with jurisdiction for the purpose of reconsidering the merits of this cause, yet in view of the strenuous contention of plaintiff’s counsel that gross injustice has been done to their client by the former decision and that an examination of the record would disclose this fact, we have examined the record at length in order to ascertain the truth with respect to every phase of the application, and we find nothing in the record or in the proceedings of the court as constituted and acting in the month of December, 1916, that would warrant us in setting aside the order denying a rehearing. The examination of the record also leads us to the conclusion that the former decision on the merits of this cause is right and should be permitted to stand, even though the court was possessed of power to reconsider the merits of the cause.
Counsel for plaintiff and appellant in his argument before this court admitted that under the press of other engagements he and his associate counsel had not given the case that attention and consideration in its preparation for the hearing in this tribunal that it should have *527had, and asks that we now permit a wide latitude of sympathetic favor to be interpreted into this case.
The matter has been heretofore regularly and finally determined and disposed of. The motion to set aside and vacate the order heretofore made denying the rehearing and recalling the remittitur is denied.