I dissent. I cannot agree with my brothers in the decision of this case.
I do not hold, of course, that an ordinance of the city of Lafayette can confer jurisdiction on a court or a judge; nor would I impair, or in the least weaken, the fixed principle of law, that a local and inferior court has no jurisdiction except such as is expressly granted, or is necessary in the exercise of the expressly granted powers. In the case before us, the judicial power of the municipality is expressly granted. There is no room for construction as to that. The only ground for interpretation is as to what magistrate shall exercise the power. As to the power itself, the act should be construed strictly; as to the magistrate who exercises it, liberally; and so are the books throughout.
Section 8 of the act cited provides for the election of city officers, among them a mayor, “ and if the common council . deem it expedient for the best interests of the city, a city attorney and city judge.”
Section 17 grants the judicial power of the city to the mayor, and prescribes his duties. The same section declares, that “ in all actions in the city judge’s or mayor’s court, either party may have a trial by jury, and a change of venue to a justice of the peace, in such city, and an appeal to a court of competent jurisdiction, under the same restrictions and in the same manner as in a justice’s court.” Again, in the same section : “ The same rules of pleading and practice shall be observed in the city judge’s or mayor’s court that are in a justice’s court.”
It seems to me that here are words granting express jurisdiction to a city judge: In all actions, to grant jury trials, changes of venue, appeals to superior courts, and regulating the practice within his jurisdiction—these words confer the power to perform the acts. There is no section in the act wherein the judicial power of the mayor is mentioned, but that *576the city judge is mentioned also. Both are continually named together, as “ the mayor or city judge,” or “ city judge or mayor.” There can be nó other rational meaning, as it seems to me, given to the act, except that which grants to the city judge the same jurisdiction as that granted to the mayor before a city judge was elected.
By the second section of the act of March 1st, 1855, 2 G. & H. 9, whenever any judge is rendered incompetent, and shall appoint some other judge of a court of record, or practising attorney of said court agreed upon, the appointee has no other expressed jurisdiction conferred upon him than that he shall “ preside in said cause, and dispose of the same, subject to all the rules and regulations governing circuit courts in similar cases, with power to adjourn from time to time, until the business is disposed of.” The jurisdiction granted by this act is no more explicit than that granted by the act in the case before us, yet it has been held valid by this court by repeated decisions during twenty years.
In Feaster v. Woodfill, 23 Ind. 493, it was held, under the act of 1855, just cited, in the court of common pleas—a court having no jurisdiction except such as was expressly granted— as “ well settled that such an appointment may be made, and when made, even in a case not within the act, that it gives a color of right to the office, so as to make a court de facto, if not de jure; that in a case when the appointment is regular on its face, the objection must be made at the trial, or all objections to the authority of such appointee will be deemed waived.” See, also, Brown v. Buzan, 24 Ind. 194.
In Mitchell v. Smith, 24 Ind. 252, the court states the case as follows: “ The Hon. Solomon Blair tried the cause in the common pleas, acting as judge thereof, he not then being the regular judge of that court. No objection was made to him, nor does the record affirmatively show his authority. It is wholly silent upon that' subject. His authority is questioned for the first time here.
“ This question was recently before iis, in Feaster v. Woodfill, supra, and received very careful consideration, and upon *577principle and authority, and in view, also, of the vast mischief which, it seemed to us, must result from a contrary doctrine, we held that when the record was silent as to the authority of the person acting as judge for the time being, and no question concerning his authority was made below, it was too late to make it in this court, and that, under such circumstances, we would hold his proceedings valid. Some reflection since has tended only to confirm us in that opinion.” Kambieskey v. The State, 26 Ind. 225; Watts v. The State, 33 Ind. 237; Hyatt v. Hyatt, 33 Ind. 309; Winterrowd v. Messick, 37 Ind. 122; Rose v. Allison, 41 Ind. 276; Lerch v. Emmett, 44 Ind. 331.
In the case of Glenn v. The State, 46 Ind. 368, under the same statute and in a case also from the court of common pleas, this court say : “ A change of judge, in such case, does not work a change of court. The court continues the same. Public policy requires this rule.”
So in the case before us, the change from mayor to city judge does not change the court, nor the jurisdiction, and public policy, if nothing else, requires the rule.
Section 9 of the act organizing this court, 2 G. & H. 2, enacts, that “ such ” (the supreme) “judges, in their respective districts, may preside at the trial of any case pending in any county thereof, wherein the circuit judge is incompetent to preside.” There is nothing in the statute anywhere as to what jurisdiction a supreme judge in such a case shall have, nor what power he shall exercise. A supreme judge, as such, has no original jurisdiction. He takes the jurisdiction and powers of the circuit judge. The jurisdiction to the circuit court has already been granted. It were useless, in express terms, to grant it again. There is no change of court, but simply a change of the judge. So in the case we are considering, there was nd change of court, no change of jurisdiction, no change of power—these had already been granted—but simply a change of the magistrate—the judge—who should hold the court.
*578In the latter part of section 77, 3 Ind. Stat. 548, it is provided, that “ when the objectión is to the judge of the circuit court, any other circuit judge, or judge of the common pleas, may hold the court and try the cause.” Without any other grant of jurisdiction or power, it has been repeatedly held that the “ other ” judge, so called to “ hold the court and try the cause,” has the same jurisdiction and power of a circuit judge. And this court has gone still further, and held, in Ex Parte Wiley, 39 Ind. 546, that the words “any other circuit judge, or judge of the common pleas,” should be so interpreted as to include the judge of a criminal court; saying that “while the judge of the criminal court was not the judge of a circuit court, within the meaning of the constitution, we think he was a circuit judge within the meaning and intent of the legislature. This construction, it is believed, will better subserve the public convenience, and carry out the true intent of the legislature, than to hold that the judges of -the several criminal courts could not be called in such cases.” So thinks the writer, that to hold that a city judge has the jurisdiction and power of a mayor will better subserve the public interests, and carry out the true intent of the legislature, than the opposite view. And in this case the judge is named by his title, while in that case the judge is called by another title than that given him by law, and exercises in his own court altogether different jurisdiction and powers from those granted to the court wherein he is called to preside.
The case just cited is also in point with the one before us in other respects. It is this :
“ James M. Wiley was indicted in the circuit court of Decatur county for the crime of murder. He filed an affidavit that he could not have a fair and impartial trial-before the judge of that court, the Hon. Jeremiah M. Wilson, and thereupon the judge called to preside at the trial of the cause the Hon. George PI. Chapman, the judge of the Marion Criminal Court. Wiley objected to the competency of Judge Chapman to preside at said trial, but his objection was not sustained. He was tried before the latter judge by a jury, convicted, and sentenced to *579imprisonment in the penitentiary for life. He applied for a writ of habeas corpus, and claimed to be discharged from imprisonment in the penitentiary, on the ground that Judge Ohapman, being the judge of the Marion Criminal Court, ¡and not the judge of a circuit court or court of common pleas, was incompetent to try said cause, and had no jurisdiction in the premises; and, therefore, that the judgment of condemnation was a nullity, and did not authorize the warden of the State’s prison to detain him. The writ was issued, and upon a hearing of the cause in the court below, "Wiley was remanded to custody.”
The judgment was affirmed by this court. There was no express jurisdiction or power granted to Judge Chapman, as the judge of the Marion Criminal Court, to try Wiley ; the jurisdiction and power were granted to the court in which he was called to preside, and if there was no authority expressly granted to Judge Haggard, as city judge, to try McNulty, he found it expressly granted to the court of the mayor, whose place he was elected to supply.
These statutes, under which various judges and unofficial persons, by appointment, have held the several courts of this State, have been in force, held valid, and approved for nearly a quarter of a century. The act under which city judges are elected, and under which this case arises, has remained in undisputed force during eight years. Litigants and lawyers have recognized its jurisdiction and power; officers have obeyed its precepts; much of the minor litigation of the cities has been settled by it; large sums of money have been collected on its judgments, and paid into the public treasury; it seems to me, therefore, that a court should hesitate long before it declared all of this work a nullity, and thus subject the city judges and the public to the disastrous consequences which must inevitably flow from such a decision. In my judgment, no decision should be made which reverses a long established practice, unsettles rights acquired in good faith, and disturbs the order in the administration of public justice, unless required by the strictest constitutional necessity.
*580Opinions filed May term, 1875; petition for a rehearing overruled November term, 1875.Upon principle, authority, and reason, in my opinion, the judgment below should be affirmed.