(dissenting). I have no dispute with the majority’s conclusion that Sayles v Circuit Judge of Genesee County, 82 Mich 84, 89; 46 NW 29 (1890), precludes reliance upon MCL 49.160; MSA 5.758 as authority for appointment of a special prosecutor. However, the prosecution also argues that MCL 776.18; MSA 28.1273 provides alternate authority for such an appointment and this argument is not addressed by my brothers.
MCL 776.18; MSA 28.1273 has two clauses, the applicability of which to the case at bar will be considered separately.
The first clause provides as follows:
"The prosecuting attorney may, under the direction of the court, procure such assistance in the trial of any person charged with a felony as he may deem necessary for the trial thereof * * * .”
In what seems to be dictum, the Supreme Court in Sayles v Circuit Judge of Genesee County, supra, intimated that, under its prior decision in *525Beecher v Anderson, 45 Mich 543, 547-548; 8 NW 539 (1881), this statute did not sanction a circuit court appointment of a private attorney to prosecute a case which the duly elected officer would not prosecute, even where the elected prosecutor requested appointment of a replacement.
Moreover, the clause refers only to appointments to assist in trials of felonies. The appointment in this case reached investigative and other pretrial work on charges including misdemeanors.
Finally, the prosecution’s brief makes no argument that this clause legitimated the appointment here, and argues only that the clause’s limitation to felony cases did not apply to the second clause. That clause reads, in relevant part, as follows:
"* * * the prosecuting attorney may, under the direction of the court, in case of disability of the prosecuting attorney, appoint an assistant to perform his duties during the disability of the prosecuting attorney.”
The question here then is whether the prosecutor’s close relationship with the sheriff’s department (in which defendant was a deputy), or the prosecutor’s role as defense counsel in a suit against the sheriff’s department (in which suit defendant was a witness for the plaintiff), constituted a "disability” within the meaning of the above clause. I am persuaded they do not. I do not believe that the prosecutor should be allowed to abdicate his duties merely because the defendant is a member of a law enforcement agency with which the prosecutor frequently works. It should be the prosecutor’s duty to proceed against all who break the law, including police officers. It might merit a different view if the prosecutor alleged that this was a personal friend of his and that his feelings toward this person would prevent a vigor*526ous prosecution. However, I do not believe that the suspect’s identity as a police officer presents, by itself, a sufficient conflict of interest to constitute a "disability” to prosecute. I see no legitimate prosecutorial interest in not prosecuting police officers who break the law.
Nor is there any conflict of interest in prosecuting a person who happens to be a witness against the prosecutor’s client. As the lower court judge very aptly observed in his opinion "any criminal action commenced against the [deputy] might smack of political overtones”. However, the conflict between the prosecutor’s duty and the adverse political repercussions he might suifer for doing it should not be elevated by this Court to the level of a legitimate disability.
I would thus conclude that, in the present case, the circuit court was not authorized to make the appointment.
It must next be resolved whether the prosecutor’s warrants were properly quashed, given that his appointment was error. My brothers conclude that the warrants here were validated by the de facto doctrine. I cannot agree. A de facto officer is one whose official status is at least colorable or has been assumed or conceded such that his putatively official acts, once acquiesced in, cannot later be challenged as without the power of office. People v Matthews, 289 Mich 440, 447-448; 286 NW 675 (1939). Here, the appointed prosecutor’s power was attacked at a pretrial conference preceding the preliminary examination and then successfully challenged by motion in the circuit court.
The case of People v Townsend, 214 Mich 267, 270-271; 183 NW 177 (1921), cited by both the prosecution and defendant, contains language indicating that a defendant in a criminal proceeding *527cannot prevail by attacking the authority of one in public office (because, said the Court, as to the public interests, there is no difference between the acts of de facto and de jure officers). However, People v Townsend, supra, at 270, also stated that this rule was to be followed "[u]pon the high ground of public policy and to prevent a failure of public justice”. Hence the rule is, in a sense, a rule of necessity. Invoking such a rule is not justified where, as here, recommencing the proceedings with a de jure prosecutor will adequately serve the needs of public justice.
For the foregoing reasons, I would affirm the decision of the trial court.