I concur in the result reached by Mr. Justice McGrath in this case, but desire to add this in relation to the verity of the journals of the Leislature.
There is no court in the United States that has ever held that parol proof could be introduced to alter or contradict the record of the legislature as made by its journals. Such a ruling would put the validity of the passage of every law in issue, and its determination would be a question of fact to be settled upon verbal proof by a jury. I venture the assertion that no such decision will ever be made by any reputable court, unless the demands of partisanship shall be permitted to overrule the better judgment of its members. When that time comes all will be lost, for courts are now the only bodies or tribunals where justice is administered or acts done without reference to political results.
The question is not a new one in this State. The doc*579trine is as well settled as a long line of solemn adjudications can make it, that the journals of the Legislature must affirmatively show that an act was not properly or constitutionally passed, and that no other evidence can be received against the validity of the passage of an act.
In Attorney General v. Rice, 64 Mich. 385, it was said that—
“Any other ruling would necessarily lead to dangerous and alarming results.”
In Hart v. McElroy, 72 Mich. 446, the authorities were reviewed, and it was shown that, in some of the states the courts would not even go behind the enrolled act to find' any defects. If the act was authenticated by the signatures of the presiding officers of both branches of the legislature, and approved by the' governor, and certified in the published laws by the secretary of state, that was the end to all inquiry as to the constitutional methods of its enactment. It was there held that in this State the courts have power to go behind these authentications, and to examine the journals of the Legislature to determine whether constitutional methods have been followed in the passage of an act; but it was also held that the presumption is always strong that the Legislature has not violated the Constitution in the passage of an act, duly authenticated as provided by that instrument, and that the proof furnished hy the journals must be clear in order to overcome this presumption. For other cases holding this same doctrine in this State, see People v. Supervisor, 16 Mich. 254; Green v. Graves, 1 Doug. 351; Sackrider v. Supervisors, 79 Mich. 59.
In determining the question whether Mr. Fridlender was a member of the Senate of this State at the time the act creating Dickinson county was passed, we are *580confined by our own decisions to the journals of the Senate. We cannot take anything for granted because it appears in the answer of the respondent. It is usual in mandamus cases to consider the statements contained in the answer to be true, but, when the matter thus stated goes to the constitutionality of the jiassage of an act, it cannot be so considered. It was held in Attorney General v. Rice, supra, and again in Hart v. McElroy, sxipra, that courts take judicial knowledge of the legislative journals, and do not allow parties to agree or stipulate, or admit by pleading, that a statute was not properly or constitutionally passed by the Legislature. No matter what our personal knowledge or belief may be, we must get all our judicial knowledge of wrong-doing by the Legislature from the journals of that body, and from no other source whatever. This must be done when we are trying to ascertain whether a constitutional quorum was present at the time the member was ousted and another seated in his place, as well as in the determination of any other question involving the fact whether or not a certain constitutional direction was followed.
If the answer of the respondent is true, a great public wrong has been committed, which merits the indignant condemnation of every right-minded and honest citizen, no matter what his political affiliations or opinions may be; but, in the consideration of the question, we must not forget that our government is composed of three great co-ordinate branches, each independent of the other, and governed, under the Constitution, by its own rules and regulations, subject only to the provisions and restrictions of the organic law. The' Legislature is the sole judge as to the qualifications of its members. It may, as has been often done for political purposes, declare a person entitled to hold a seat in either body who was not legally elected to such seat, and oust one who was elected, *581and holds in his hand the certificate of such election from the proper authorities. Against such action the executive and the courts are powerless. The only remedy lies with the people, and they cannot adequately redress the wrong. So prevalent in latter years has been this partisan practice of deciding all questions relating to the election of members of Congress and of state legislatures that there has grown up a wide-spread feeling among the people that the provisions contained in the Federal Constitution, and all of the state- constitutions, that these bodies shall be ■sole judges of the election and qualifications of their members, is unwise and dangerous, and should be changed .so' that these rights may be determined, if possible, by an impartial and non-partisan tribunal, such as a court of last resort. But, until this' is done, courts must be governed by the Constitution, and cannot in any way trench upon the right of the Legislature in this respect without danger to our free institutions. The spectacle of the supreme court of any state undertaking to decide-who were entitled to seats in the legislature, against the will of that body, and attempting to enforce its decrees, would .soon be followed by the sight of an attempted impeachment of the judges; and riot and bloodshed might follow, .as the natural result of the excitement attendant upon the conflict between these two great branches of the government.
The only question that we can determine in this case, 'unless we override our own precedents and the decisions -of all other states where the question has arisen, is whether a quorum of the Senate was present when Mr. Morse was ousted, and Mr. Fridlender declared entitled to his seat; and this must be determined from the Senate Journal, and that alone, and every presumption and intendment must be in favor of the legislative action. From the journal it appears that a quorum was present, *582and there is nothing to show to the contrary, except a protest entered upon the journal upon the next day, and signed by 16 Senators, and also by Messrs. Morse and Horton, who had been deposed from their seats, setting forth, among other things, that a quorum was not present when the proceedings to deprive Mr. Morse of his seat were taken. If this protest be true, as averred by its signers, then a quorum was not present, as under the Constitution it takes 17 Senators to constitute a quorum.
The journal of the 34th "of February shows that upon the adoption of the report declaring the votes cast in the townships of Cummins and Harrisville illegal, and rejecting them, 31 Senators voted, — 14 yea and 7 nay,— and the names are recorded. Separate resolutions were then adopted, declaring Morse's seat vacant, and Fridlender duly elected to the same. It does not appear that any yea or nay vote was demanded or ordered on these last two resolutions. Hpon the report declaring Horton ineligible, 30 Senators voted, — 14 yea and 6 nay; and the names of those voting are recorded. Hpon the resolution declaring the seat of Horton vacant, and declaring Morrow legally elected to the same, it does not appear that the yeas and nays were demanded or ordered, but the resolution was carried. Attached to the protest, filed the next day, is the affidavit of 15 Senators and Mr. Morse to the effect that, when the resolutions in the case of Fridlender v. Morse were passed, not one of them was present in the Senate Chamber, and that there was no quorum present when such resolutions were adopted. These affidavits are supplemented by the affidavit of Senator Taylor, who swears that he was present, and that only 14 other Senators were present (naming them), which list of names does not include any of the Senators making the other affidavit. There seems to have been no protest in the case of Horton; and nothing *583appears in any way upon the journals that any claim was ever made in the Senate that there was no quorum present when he was unseated, and Morrow declared elected.
It is substantially admitted by this protest and the affidavits that 6 of the protesting Senators were present when the votes were taken in both cases upon the adoption of the reports which virtually settled both cases. How and when they left the Senate Chamber before the final resolutions were passed does not appear, either in the protest or the affidavits. If they rushed out of the chamber' to break the quorum, it does not so appear. They were not granted leave of absence; and the journal, upon its face, must be considered as showing them pres.ent. This protest and the affidavits cannot avail as against the journal. At best, it is not of as much strength as parol evidence. The protest itself is but an assertion of the person making it, not under the solemnity of an oath; and the affidavits of Senator Taylor and the others are ex parte statements under oath, without any cross-examination. It must be conceded that neither Senator Taylor alone nor all the other protesting Senators together would, under the well-settled law of every state in the American Union, be permitted to appear in court and give evidence to the same effect as this protest, against the truth of the journal entries of the 2áth of February. If this be so, what effect will the law give to a naked protest or an ex parte affidavit, even though the same be spread upon the journals? The answer is obvious. The protest and affidavits can have no effect whatever, and can no more be considered as impeaching the verity of the journal than would parol or other proof outside of such journal. The right to protest, and to spread the same at length upon the journal, is given by the Constitution to every member; but such protest cannot be permitted to impeach the journal *584entries. Therefore, it must be held, by the inexorable logic of our own previous utterances, as well as the law of‘the land, that the journals show a quorum present when these proceedings of the 2éth of February were taken, and that such showing is not impeached by the protest, and cannot be by any evidence of any kind whatsoever, outside of such journals.
It is further shown that, notwithstanding this protest, Morse and Horton gave up their seats and retired to their homes, and the other 16 senators, for the remainder of the legislative session, from the 25th day of February until the 3d day of July, sat in the Senate, and recognized Fridlender and Morrow as Senators, without taking any steps whatever to assert their rights, or to prevent this alleged ■ intruding into and usurpation of office by these two gentlemen, except the protest aforesaid. If they should now be declared usurpers, almost every important law upon the statute-books of 1891 would fail, and “ confusion worse confounded" would be the result. There is no end to the contemplation of the damage that would naturally result to the people of this State. As the matter stands, I am satisfied that the courts have no authority to right the wrong, if any has been done, and that the evils to be endured, if there has been any wrong, are infinitesimal, compared to those that would necessarily follow a declaration upon our part that the acts of Fridlender and Morrow as Senators were void and of no effect.
To meet such cases as the present, even if it be granted that Fridlender and Morrow were unlawfully seated, the law has wisely ordained that the acts of a de facto officer shall have the same validity as the acts of a de jure officer. This rule of law applies to this case as well as to all others, and for the same reasons. It has been recognized ifti this State 'in an opinion concurred in by *585all of the present members of this Court, excepting Mr. Justice McGrath, who was not then a member of the Court. In Carlisle v. City of Saginaw, 84 Mich. 134, it was contended that the act consolidating the cities of Saginaw and East Saginaw into one municipality was unconstitutional, because—
“It conferred upon 15 residents of the city all rights, powers, duties, and privileges of duly-elected aldermen of the city of Saginaw, and created them a part of the common council of the city.”
Here was a claim that 15 men were unlawfully created and acting as aldermen. Chief Justice Ohamplin, in his opinion, says:
“The 15 aldermen referred to are acting as the aider-men of the consolidated city, and they are at least defacto such officers as they represent themselves to be; and their acts, while acting in that capacity, will be valid. We shall not try their right to hold the offices in this collateral proceeding.”
I can see no distinction between that case and this.
But here it is gravely argued, not only that the right to hold the office of Senator can be determined in this collateral proceeding, but also that Eridlender and Morrow, for some reason not heretofore known to the law, ought not to be considered as do facto officers, and that whenever it is found that their votes, or one of them, were necessary in the constitutional passage of a .law, such law must be held invalid for that reason; and that, too, in the face of a constitutional provision that each house of the Legislature shall be the sole judge of the qualifications of its members. It is useless to argue that the unseating of these two Senators was an outrage, and done only for political effect and partisan advantage. Let it be granted, and it does not help the matter, nor add one jot or tittle to our jurisdiction in the premises. These things are becoming so common, and to be so *586familiar, that perhaps this “ monster of such frightful mien” grows less hateful to the people; but I trust not. The hands of no political party in power are clean in this respect. The wrongs done by Congress and every legislature in the name and at the behest of party are legion; and the courts, under our present system of government, are powerless to prevent them. It remains for the people, before it is too late, — before the courts-become also the instruments of partisan advantage or malice, — to' amend their organic laws so that the right of a citizen duly elected by them to a seat in Congress or a state legislature shall be passed upon by an independent and impartial tribunal, if such an one can be found or created.
The writ must be denied, for the reason stated by Mr, Justice McGrath. Chahplin, C. J.In this case the validity of an act-of the Legislature organizing the county of Dickinson, is attacked upon the ground that one of the members of the Legislature was not a Senator and member of that body, and authorized to cast his vote upon the bill organizing Dickinson county. I concur in the result .reached by Mr. Justice McGrath and Mr. Justice Morse, and place my concurrence upon two grounds, either of which is sufficient to dispose of the questions raised.
The first ground is that section 9 of article 4 of the Constitution of the State of Michigan declares:
“Each house shall choose its own officers, determine the rules of its proceedings, and judge of the qualifications, elections, and returns of its members.”
The journal of the proceedings of the Senate of the 24th day of February, 1891, shows that a session of the' Senate was held, at which a quorum was present, and that certain business was transacted and bills passed upon which the yeas and nays were taken, and which *587votes show that 21 Senators were present and voting, that, during the session at which the action complained of was had, several votes were taken by yea and nay, each of which shows that a quorum of the Senate was present and voting. It also shows that the seat occupied by the Honorable Benjamin C. Morse, of the 26th senatorial district, was contested by Charles A. Fridlender; that the contest had been referred to a committee, and on the 24th day of February unanimous .consent was given to the committee having the matter in charge to make a report; that they made a report, in which the majority of the committee said that they were of opinion that the votes cast in two of the townships in that district should be rejected and counted for - naught, for the reason of gross frauds and irregularities committed therein. The question being upon the adoption of the report, Mr. Crocker moved that the previous question be put; Mr. Taylor calling for the yeas and nays, from which it appears that 14 voted in the affirmative and 6 in the negative, showing that a quorum was then present. The question again being upon the adoption of the report, the report was adopted, the Senators votiug thereon by yeas and nays; and the names of the Senators voting are given, from which it appears that 14 voted in the affirmative and 7 in the negative. Thereupon, leave being asked and unanimous consent being given, Mr. Crocker offered the resolution that the entire vote of the two townships of Cummins and Harrisville be declared null and void, and, further,—
“That the seat of the said Benjamin C. Morse in this Senate, as Senator from the 26th senatorial district of the State of Michigan, be, and the same is hereby, declared vacant.”
The journal shows that on motion of Mr. Crocker the resolution was adopted, and that, leave being asked, and *588unanimous consent being granted, Mr. Crocker offered a resolution, with a preamble, in which it was stated that, as a matter of fact, Charles A. Fridlender should have been declared elected as a Senator from that district, instead of Benjamin C. Morse, and it was, therefore,—
“Resolved, that the said Charles A. Fridlender be, and he is hereby, declared duly elected Senator for the 26th senatorial district of Michigan, and entitled to the seat recently made vacant by the removal of Benjamin C. Morse.”
It further shows that on motion of Mr. Crocker the resolution was adopted. It also appears from the journal of the 25th of February that Mr. Fridlender had taken the constitutional oath of office, which was spread upon the journal. Rule 11 of the Senate Rules provides that—
“No member shall absent himself from the Senate without leave first obtained.”
There is nothing upon the journal of the Senate which shows that any Senators, after the yea and nay vote adopting the report of the committee on elections, had asked or obtained leave to absent themselves from the Senate; and neither does the affidavit filed by the Senator who was present at the time such vote was taken state that they either asked or obtained leave to absent themselves during that session of the Senate. It appears, further, from the journal of the proceedings, that the Senate did pass upon the election and qualifications to a seat in that body of both Mr. Morse and Mr. Fridlender. But we are asked in this proceeding to declare the law organizing Dickinson county null and void because it was passed by the vote of Charles A. Fridlender, under the claim that Fridlender is a usurper of a seat in that body, for the reason that, at the time he was seated, there was not a quorum of the Senate present.
This question as to the validity of a law passed by the ' *589Legislature by the votes of persons who assumed to act as Senators or Representatives, who were not legally elected to the place, is not a new one in this State. In the case of People v. Blodgett, 13 Mich. 127, the question as to the legality of what was known as the “Soldiers’ Voting Law ** arose under a claim made over the office of prosecuting attorney for the county of Washtenaw; and it was held by Justices Campbell and Christianct that the soldiers* voting law was in conflict with the Constitution, and was therefore void. The seats of certain members of the Legislature were contested upon the ground that the law was unconstitutional, and the contest was referred to the committee on elections in the House, and they decided that those who were elected by the soldiers* votes in the field, and out of the State, were entitled to their seats; and . after the decision was handed down in the Blodgett case the House decided .that, having once passed upon the contested election case, they would not revoke and set aside their determination, although the Supreme Court meanwhile had declared unconstitutional the statute upon which the determination of the House had been based. H. J. 1865, p. 1056. The same position was taken in the Senate (S. J. p. 594); and that body also refused to adopt a resolution declaring it—
“The sense of the Senate that no Senator, the right to whose seat is involved in the resolutions reported from the committee on privileges and elections, is entitled to vote upon the question of the adoption of either until the question of the right of each to his seat shall have been decided by the Senate.** S. J. p. 595.
The question of the right of this Court to interfere, and determine whether a member who was admitted to a seat in the Legislature was entitled to hold the same, came squarely before this Court in the case of People v. *590Mahaney, reported in 13 Mich. 481. In that ease a law was passed and ordered to take immediate effect, which required two-thirds of all the members elected to each body. The motion to give the law in question immediate effect was passed in the House by 67 votes. Nine of those voting were elected by the aid of the votes of soldiers in the field, the law authorizing which the Supreme Court had declared was unconstitutional; and taking those votes from the number, left 58 votes, — not sufficient to give the law immediate effect. The point was raised by Mr. Levi Bishop, in the case of Mahaney, as follows:
“The Act No. 21, approved February 5, 1864, by which soldiers were authorized to vote out of the State, has been declared by this Court to be unconstitutional, null, and void. People v. Blodgett, 13 Mich. 127. As a consequence, the 200 votes cast out of the State, for each of the 9 admitted members, were illegal and void; and these men were therefore not elected to the House by virtue of any law or any legal authority. They were not members of the House, they had no right to seats therein; and the act by which they were admitted was an act which had no authority of law, and which was in itself null and of no effect. Consequently, this police act was not ordered to take immediate effect by 67 votes, being the constitutional^ two-thirds of the House, but by only 58 votes out of Í00, of which the House was composed. If this act, therefore, took effect at all as law, it was not till June 20, 1865; that being 90 days after the close of the session at which it was passed, which was after this board of commissioners qualified and organized, or attempted to organize, under the act. All this seems very clear, unless the clause of section 9, art. 4, authorizing each house of the Legislature to ‘judge of the qualifications, elections, and returns of its members’; vests in the House the power to determine absolutely and finally all questions in regard to its own membership. It is submitted that this clause of the Constitution vests in each house the right and duty simply to determine— First, whether the returns or certificates of election are, in form and substance, in conformity with law; second, *591whether a man who presents himself for membership has the requisite qualifications, according to sections 5 and 6, art. 4; third, whether, at a proper election, he has received a majority of legal votes cast by legal voters under the law. In this they do not act judicially upon statute or constitutional law; for the judicial power by .section 1, article 6, is vested in the courts or judicial tribunals. And the whole judicial power is .thus vested in the courts by this clause of the Constitution. Chandler v. Nash, 5 Mich. 409. The members of the House are to act in subordination to the law, and not adjudge, ■as a court of last resort, what that law is. When it is •ascertained what the law is, they must obey it.
“ This Court has authority to adjudicate upon acts of the legislative body, and to pronounce them of no effect. The whole includes every part. The legislative body includes every integral part of such body. Each house is an integral part of that body. Therefore, the power ■to adjudicate upon the acts of the whole body includes •the power to adjudicate upon the separate acts of each integral part. 1 Kent, Comm. 504; Supervisors v. Heenan, 2 Minn. 330; Wartman v. Philadelphia, 33 Penn. St. 202. And this Court should exercise the power in any •case and in any form in which the' question may be presented; otherwise, there will be no way of enforcing the law of the land, and compelling its observance on the subject. This is the only remedy of the people in those instances of violation of law.”
So that, the point was squarely presented to the Court; and, as the decision is in point in this case, I quote and adopt the opinion of Mr. Justice Cooley in the case of People v. Mahaney, which is found upon pages 491 to 494 of that case, as being entirely decisive of this, which •opinion was concurred in by all the members of the Court, and ought to settle the controversy in this case. Mr. Justice Cooley said:
“The Constitution (article 4, § 20) provides that ‘no public act shall take effect or be in force until the expiration of 90 days from the end of the session at which the same is passed, • unless the Legislature shall otherwise •direct by a two-thirds vote of the members elected to each house.’ The session at which this act was passed *592terminated on the 23d day of March; and laws not ordered to take immediate effect would, therefore, not come into-operation until the 21st of June. The legislative records-show that this act was ordered to take immediate effect, but the pleas set forth certain facts which, it is claimed, show that in the House of Representatives the two-thirds vote of 67 members included several who had not been elected by a majority of legal votes, but who, it is-also claimed by the pleas, were notwithstanding retained in their seats by an adjudication of the House in their favor; and it is insisted that this Court is not bound by the action thus taken, but may go behind the law as-approved to ascertain whether, in fact, the constitutional vote necessary to give it effect befoi’e the expiration of the 90 days was cast by members legally chosen.
“As the Court are bound judicially to take notice of what the law is, we have no doubt it is our right as-well as our duty to take notice, not only of the printed statute-books, but also of the journals of the two-houses,- to enable us to determine whether all the constitutional requisites to the validity of a statute have-been complied with. The printed statute is not even prima facie valid when other records, of which the Court-must equally take notice, show that some* constitutional formality is wanting. 'No plea is necessary to bring to the notice of the Court facts which the Judges must-judicially know, and in respect to which no proof could be given. 1 Chit. PL 215; Coburn v. Dodd, 14 Ind. 348; Supervisors v. Heenan, 2 Minn. 330 (Gil. 281); People v. Purdy, 2 Hill, 33; De Bow v. People, 1 Denio, 11; Bank v. Sparrow, 2 Id. 101; People v. Railroad Co., 12 Mich. 397.
“ But although the courts- must take judicial notice of legislative action, so far as it affects the validity of statutes, they have no such power as respects the facts-attending the election of the several members; and it remains to be seen whether we can notice those facts, even after they have been spread upon the legislative journals,- and make them the basis of judgments, the retrospective effect of which would be to unseat members of a body long since adjourned, and to annul its action by declaring the votes of such members illegal and invalid.
“It is insisted by respondent’s counsel that, although section 9 of article 4 of the Constitution authorizes each *593house to 'judge of the qualifications, elections, and returns of its members/ yet it does not do more than to empower them to determine — First, whether the returns or certificates of elections are in form and substance in conformity with, the law; second, whether a man who presents himself for membership possesses the requisite qualifications; and, third, whether, at a proper election, he has received a majority of legal votes cast under the law.
''And in passing upon these questions, it is said, they do not act in a judicial capacity, to determine what the law is, since the tjudicial power, by section 1 of article 6, is vested in certain courts and officers, but they sit under the law to apply it as judicially expounded to the facts before them.
''It is a sufficient answer to this argument that, while the Constitution has conferred the general judicial power of the State upon courts and officers specified, there are certain powers of a judicial nature which, by the same instrument, are expressly conferred upon other .bodies or officers; and among them is the power to judge of the qualifications, elections, and returns of members of the Legislature. The terms employed clearly show that each house, in deciding, acts in a judicial capacity; and there is no clause in the Constitution which empowers this or any other court to review their action. The general superintending control, which the Supreme Court possesses, under section 3 of article 6 of the Constitution,
‘ over all inferior courts/ doos not extend to the judicial action of the legislative houses in the cases where it has been deemed necessary to confer judicial powers upon them with a view to enable them to perfect their organization and perform their legislative duties. The houses are not 'inferior courts/ in the sense of the Constitution, but, as legislative organizations, are vested with certain powers of final decision, for reasons which are clearly imperative.
“ It may happen, as suggested in the argument, that with each house not only deciding for itself questions of fact, but also construing for itself the law, we may sometimes witness the extraordinary spectacle of the two bodies construing and enforcing the law differently, while a third construction is enforced by the courts upon the public at-large. But, with this possibility in view, the *594evils of allowing the courts a supervisory power over the decisions of the house upon the admission of members are so great and so obvious that it is not surprising that the framers of the Constitution refrained from conferring the power. The supervision could not ordinarily be exercised during the session of the legislative body; and to correct the decisions afterwards, by annulling the laws passed, would only be to substitute a great public evil for that which might have been a wrong to an individual member, and to the district which elected him, but which could seldom affect the State at large. It can make no difference that in this case, according to the pleas, the question passed upon by the House was purely a question of law. The question of the legal election of a member is usually a question compounded of law and fact, and the House must necessarily pass upon both. If we have the power to review the decision in one case, we have in all. If we can correct their erroneous construction of a law, we have the same power to correct any erroneous decision upon returns, qualifications, or majorities. It is sufficient for us to say that the Constitution has not conferred upon us this jurisdiction; and, whether the decision made is right or wrong, we shall leave it where it has been left by the fundamental law of the State.”
It is claimed that there is a distinction between that case and the one now under consideration, in this: That the answer of the respondents asserted that, at the time, the journal of the Senate shows that a quorum was present, but there was in fact no quorum present, and therefore they are authorized to go behind the journal, and upon their individual statements contest the verity of the journal, and so show that Fridlender was not seated by a quorum of the Senate. But there can be no distinction between the two cases, because, if you may go behind the journal in one instance, you may in all cases, and contest the validity of every motion, every resolution, every bill, and every contested election, by challenging the verity of the journal, and alleging that it is false in fact, and *595thus do away with all stability in legislation, and leave the resolutions and laws passed by the Legislature to rest, not in solemn records, but upon the testimony of witnesses, — a thing which has never been done, and, I venture to say, never will be done, by any court having regard for the sanctity of laws and of official records. It is sufficient for us to know that the Constitution has not conferred upon this Court power to review or reverse' the determination of the Legislature, or of either body thereof, upon the question as to who are entitled to seats in that body. It was well said by Mr. Justice Coolet that—
“If we have the power to review the decision in one case, we have in all. If we can correct their erroneous construction of a law, we have the same power to correct any erroneous decision upon returns, qualifications, or majorities. It is sufficient for us to say that the Constitution has not conferred upon us this jurisdiction; and, whether the decision made is right or wrong, we shall leave it where it has been left by the fundamental law of the State.” 13 Mich. 494.
It is urged upon us that Fridlender obtained his seat in the Senate over a broken Constitution; that he is a mere usurper there; and that his vote upon any question coming before that body is a nullity. I reply to this that the question of his right to a seat was one, under the Constitution, wholly within the province of the Senate to decide, and that if he was a usurper his usurpation would not be as flagrant as the usurpation of this Court, if we undertook to decide upon his qualification as a member of that body. The Constitution has vested that power in the Legislature alone; and it is one of the powers which is beyond the jurisdiction of this Court to inquire into. But there is still a further consideration in reference to this claim of usurpation. We must not only set aside the validity of the Senate Journal, but we *596must assume as a fact the contrary to be true, and that without evidence; and, if we should hold that Fridlender was a usurper, we must do it on the strength of an epithet, without proof, and against the validity of the proceedings of the Senate as recorded by that body. Let me inquire what proof there is here that Fridlender was not duly seated by the Senate. We have nothing before us but the journals of that body, and the assertion of a fact in a protest contradicting the record does not have the force and effect to overthrow the journal of that body.
The other ground of my concurrence is that.Fridlender was a Senator de factoj and an authority cannot be found, entitled to any weight whatever, which tends in the remost degree to show that his acts are not valid while he occupied the position in that body as a member of it. It is not true that the act of a usurper is always a nullity. The question of the validity of the acts of an officer de facto is one which interests third persons and the public; and, as to such third persons and the public, one who is an incumbent of an office, exercising its functions and duties, is always held to be an officer de facto, whether he be a usurper or whether he entered under color of right.
This question was ably discussed in the case of State v. Williams, 5 Wis. 308. It arose out of the contest between Gov. Barstow and Gov. Bashford. Proceedings were taken in the nature of a quo warranto in the case of Attorney General v. Barstow, reported in 14 Wis. 567, over the right and title of Barstow to the office of governor. Barstow had beeen elected governor, and had filled that position. His competitor was elected; but he claimed that he was elected, and, having obtained the certificate of the board of canvassers, refused to yield the office to his successor. One of the main questions *597•afgued in that case was whether the supreme court of Wisconsin had jurisdiction over the question to oust the governor of the state from the office of governor, and it was conceded in that case that the court had no such jurisdiction to determine the title of a member of the legislature to his office; but the court held that they did have jurisdiction to determine the right of i Barstow to the office of governor, and he was ousted as a usurper after the term of his office had expired. It so happened that the legislature was in session during the time that he assumed to hold over, and that he approved and ■signed a bill which had been passed; and the contention was, in State v. Williams, that this bill was not a law, for the reason that every law required the approval of the governor, and that Barstow was not governor, being .a usurper, as held by the court. But the court said the fact that he was a usurper in office did not render the act invalid; that he was an officer de facto; and they refused to declare the law illegal, unconstitutional, and invalid. That is a much stronger case than the present, in which we are urged to declare this law invalid because Fridlender, as is asserted, was a usurper of the office of Senator.
In the case of Board of Auditors v. Benoit, reported in 20 Mich. 176, it was held that a person actually in office, -with the legal indicia of title, was a legal officer, at least so far as to render his official acts as valid as if his title were not disputed; and the Court said:
“ There may be cases where the redress of the aggrieved party will be difficult, but the public convenience is not •on that ground to be sacrificed. It is important to have the right man in office, but it is more important to be able to deal safely with those who are actually in place; and there would be great hardship in allowing the whole public interests to be thrown into confusion whenever a contest arises for office.”
*598See, also, Carleton v. People, 10 Mich. 250, where officers were recognized as officers de facto who had been elected to fill offices which had not yet been created, by reason of the act under which they might have been elected not taking immediate effect.
The leading case upon the question of the validity of the acts of officers de facto is that of State v. Garroll, 38 Conn. 449, where the whole subject is ably discussed; and it is shown that a person filling an office under a statute which was unconstitutional, and therefore void, was an officer de facto until the law was declared to be unconstitutional by the court.
This Court has recognized the same principle in Donough v. Dewey, 82 Mich, at page 314, where it is saidr
“While it is true that there cannot be an officer d& facto unless there be an office to fill, yet the rule is modified so far as offices have been created by the Legislature, while the statute creating them has not been declared unconstitutional. This is upon grounds of public policy.”
And in this case public policy requires that the members of the Legislature sitting in that body, and enacting laws, should be regarded as officers de facto, so far as the public and third persons are concerned; and their acts and votes upon measures before that body, of which they were acting as members, cannot be disputed or contested in this collateral proceeding. The authorities referred to more fully by Mr. Justice McGrath are ample to support this Court in the position that Senator Fridlender was a Senator de facto, and a member of that body.
This is all that I have deemed it necessary to say upon this branch of the answer of the respondent to our order to show cause.
Upon the other branch of the case, with reference to' the apportionment of the taxes between Menominee and *599Dickinson counties, I concur in what is said by Mr. Justice McGrath.