Ex parte Call

White, J. It is a general rule that the title of an incumbent of a judicial office cannot be impeached collaterally and indirectly, and that, while he is in possession of the office, discharging its ordinary functions, his official acts are conclusive as to all persons interested. Cooper v. Moore, 44 Miss. 386. [501] An officer de facto is a person who is such by color of election, though ineligible, or though the office was not vacant. Gregg v. Jamison, 55 Pa. St. 468. The right of a person acting colore officii to the office in which he acts can be tried only in a proceeding to which he is a party, directly presenting the question, and not in a collateral way between third persons. Douglass v. Wickwire, 19 Conn. 489; Facey v. Fuller, 13 Mich. 527; Bean v. Thompson, 19 N. H. 290; Com. v. McComb, 56 Pa. St. 436. In a suit concerning the public, as for the recovery of a penalty which goes only to the treasury, the title of an acting public officer cannot be collaterally questioned. Creighton v. Piper, 14 Ind. 182. See, also, McKim v. Somers, 1 Pa. St. 297; Eaton v. Harris, 42 Ala. 491; Kaufman v. Stone, 25 Ark. 336; The State v. Lewis, 22 La. An. 33; Ex parte Strong, 21 Ohio St. 610; Aulanier v. The Governor, 1 Texas, 653; The State v. Carroll, 38 Conn. 449; The People v. Hopson, 1 Denio, 575. The appointment of one to an office incompatible with the one he holds at the time of appointment is not absolutely void; the first office becomes vacant on his accepting the second and qualifying for it. People v. Carrington, 2 Hill, 93; Hoglan v. Carpenter, 4 Bush, 189. In Taylor v. Skrine, 2 Const. R., it was held that, when a person has been appointed a judge under an act which has been declared unconstitutional and void, his acts were nevertheless adjudged to be valid until the commission was declared void. The result from all the authorities seems to be that, in matters which concern the public, the officer’s title to his office (he being in the exercise of its duties) cannot be questioned unless in a direct proceeding having for its object the contestation of his right to hold the office. The People [502] v. Stevens, 5 Hill, 630; Green v. Burke, 23 Wend. 490; The People v. White, 24 Wend. 520. The law as above laid down disposes of the main question presented by the record in this case, which was as to the right of the county judge of Orange county to exercise the functions of that office, he being, at the time of his election to said office, a deputy United States marshal. This in our opinion disposes of the only question necessary to be considered in this case. For, if he was legally county judge, then he could hear and determine appeals from justices’ courts when, as in this case, property taken; and, if the jurisdiction of the county court property attached in the case, then the action of that court is not, and cannot-be made, a subject of revision by proceedings on habeas corpus. Darrah v. Westerlage, 44 Texas, 388; Perry v. The State, 41 Texas, 488; Ex parte Scwartz, decided at the present term of this court, ante, p. 74; Hurd on Hab. Corp. 331. The county court had jurisdiction of the case on appeal from the justice’s court, and the judgment of said court is final. General Laws 1876, ch. 27, sec. 3; ch. 110, sec. 3; Const., Art. 5, sec. 16. The proceedings had before the justice’s court were regular and in conformity with the law.. The opinion of this court is that the applicant for the writ of habeas corpus be adjudged to pay all the costs of" this proceeding, and that the writ of habeas corpus be dismissed. Writ dismissed.