sult might be otherwise, and it is fair at this stage of the experiment to presume that it would be otherwise.

thinly disguise, was obvious. But with such judges such concomitants are inevitable.

In every great city we perceive certain lawyers coquetting for judicial nominations. We have watched many such essays ripen into overt proposals, and are able to say that the solid methods of professional excellence and eminence are rarely embraced among them. Occasionally the candidate is a protegé of some great man, of some ruling power; now an anti-Catholic candidate is taken, because it is the turn of the anti-Catholics; at another, the choice is with the Catholic hierarchy and its political exponents. If it is the anti-Catholics' turn, the Catholics prefer a straight-out non-sectarian, for if the roll of Catholics is full, the next best thing to a good Catholic is a thorough-going nonsectarian. Then each hall must be represented by its judge, and so on through the different interests in socitey.

But the main qualification for a judicial candidate in the great cities seems to be that he and his friends are willing to pay for the nomination, pay roundly and pay ungrudgingly. What a spectacle for the boasted civilization of free America in the

nineteenth century! It is enough to make a horse laugh at patriotism and buncombe.

But only part of the tale is told. In some cases the candidate is unable to pay down, and then we are informed that he sometimes alienates his stipend in futuro, or in plain words, that he puts a mortgage on the time-honored wool-sack, or on the very bench of justice. Fancy, if you can, you happy suitors in such a court, that your judge has got a mortgage on his very soul, a judicial Dr. Faust with

a vengeance.

Yet the most degrading part of the performance is that there are members of the bar who know this, and refrain from denouncing such a perversion of civilized methods of government. These are the judge-worshipers, the fawners, the parasites, the sycophants, who would bask in the favor of even such a judge.

We can well remember one instance where one of these laudatores juridici, having already wrecked the happiness and honor of one judge, approaches the press at the instance of a rising sun of justice, whom under no circumstances could he have known well. That he had a double purpose to subserve, not difficult to detect, and the hardihood to but

voice should be the signal for public silence, and his utterance bear far-reaching evidences of a trained and cultivated mind. A judge may bellow like an oysterman in a fog, or like the foreman of the "Big 4" in the more provincial days, when the American's toga virilis was assumed under the hose company's roof and not at the club; but if the vociferous judge is as apt to be right as wrong, if his sound is not sense, why, though he bellow like the bull of Bashan, his judicial voice is as the wind.

It is now the fashion to say that there are no judges but the newspapers; but the evil indicated has given rise to this heresy: were the judges stronger intellectually than the editors of the daily papers, it would have had no currency. There have been judges nay, there are judges now - that no newspaper published could dare to criticise or dictate to; but such are too few under the present system, at least in our great cities.

Is it enough for gentlemen to say, what of it, while this idle, aimless, undistinguished judiciary is feeding contentedly at the public crib? We unhesitatingly answer, it is not enough. Something must be done. Already the leaders of the commercial circles are coming to rely wholly on the more dignified authority of the Federal establishment.

Even business is so shaped as to come for its remedies before the Federal courts, and slow as appeals are there, gentlemen of the bar feel more certain that in the Federal courts they will find that courtesy which is as much due from the bench as respect (not servility) is due from the bar to the part of the governmental imperium on the bench.

In the Federal courts the officials are found to be cleaner, more respectable and more wholesome, while the entire atmosphere is purified from that dross and bossism of the great cities which pervades the State courts.

We realize however that it is not enough to point out the disease, and that the reader will say, tell us the remedy, but this is the rub.

We suggest that the disease is in the nominating machinery in the halls, the primaries, the caucus, the bosses of politics, and the leaders of the proletaries in the great cities.

We suggest some change in the nominating power as the cure, carefully leaving the elective power still to be exercised by the people. As it now is the people do not nominate the judges. This every man of sense knows to be true.

Who are the fittest persons to determiue the judicial candidates? Certainly, primarily the lawyers themselves have better opportunities to know the qualifications of each other than the nominating conventions or their subordinates.

Many years ago, and at the foundation of the Re

public, Virginia tried a plan of selecting her judges which gained the warm approval of the great Marshall himself. The judiciary were appointed by joint ballot of both houses of Assembly. In case of vacancy in the justices' courts they were filled by the governor and council upon the recommendation of the county courts. The result was that the most distinguished and substantial people of Virginia were the incumbents of the justices' courts. While such a system of appointment would probably be impracticable now, what doubt is there that we can improve on the nominations of the halls and the bosses in our cities?

Were the bar to present to the judges a number of candidates for a vacant judgeship, and should the judges then select out of these the candidates for the respective political parties, so that each considerable party wonld have its own candidate presented for their suffrages, why then the ultimate determination of the judiciary might well and safely be left where the voting power is now lodged in the people at large.

-

But there is a crying necessity for reform, for such a mediocre judiciary as the present incumbents of the courts of record in the great cities, never has been seen before in the history of New York.

A reform in the mode of nominating the judges, together with the Australian system of voting, would no doubt secure to us as fine a judiciary as the scientific standards of the bar in this State yet warrant, and that is much higher than the present type of the judiciary would indicate to be possible.

In conclusion, let us remark that what we have said has no particular reference, and none at all to those of the city judges whom every one admits to be useful and able.

[We publish the foregoing views of an eminent city lawyer with general acceptance on our part as to the "disease." As to the "remedy" we should want to reflect a little.- ED.]

Different courts have answered this question differently, but the preponderance of dicta and decisions supports the negative answer.

In People v. White, 24 Wend. 539, Chancellor Walworth's definition of a de facto officer supports this view. He says: An officer de facto is one who comes into a legal and constitutional office by color of a legal appointment, or election to that office."

In Carlton v. People, 10 Mich. 250, the question involved was whether the members of the board of supervisors of Muskegon county were de facto officers. While the particular question here discussed was not involved, because the majority of the court held that the office existed, yet one of the controlling opinions (per Manning, J.) expressly recognized the principle, that there can be no officer de facto untless there is a valid office for the officer to hold. He says: "Where

make an officer de facto, is that the individual claim"And all that is required where there is an office, to ing the office is in possession of it performing its duties and claiming to be such officer under color of election or appointment. as the case may be." A dissenting opinion was written by Judge Campbell, in which Judge Christiancy concurred. They were for reversing the judgment on the ground that the supervisors were not officers de facto, for the reason that when the election was held, no such office existed. Campbell, J., says: "There could not be an officer de facto where an office de jure was not provided for. Where the law has provided that an office may be legally filled, then lawfully appointed because the public being bound to the act of the incumbent may be valid, although not know the law, know that somebody may or should fill the place and perform the duties, and the possession

as to them would be evidence of title. But where the

assumes

law itself negatives the idea that there can be a legal incumbent, any one assuming the act what every one is bound to know is not a legal office, and his acts cannot be effectual for any purpose."

The fallacy of the dissenting opinion lies in ignoring the fact that at the time the question arose as to whether the members of the board of supervisors of Muskegon county were de facto officers, the offices themselves had come into existence. At the time the officers were elected, the act organizing the county of Muskegon had not taken effect, but subsequently the act took effect under the Constitution, and this was before the question was raised in this case as to their being de facto officers. Of course the moment the law took effect, the county became organized and the offices of supervisors came instantly into existence. From that moment there were de jure offices to be held by de facto officers.

The cases of Fowler v. Beebe, 9 Mass. 231, and Yortey v. Payne, 62 Wis. 154, both recognize the soundness of this rule, for in both cases the county and town officers had been elected before the law organizing the county and town took effect, and in both cases the court held that after the law took effect the officers became de facto officers, for the reason that they were then legal offices in existence which could be held by a de facto officer.

In Yortey v. Payne, a tax title depended upon the assessor who made the assessment being a de facto officer of the town of Pine River. The assessor was elected to the office before the act organizing the town became a law. While the court held that the assessor was a de facto officer from the moment the town became organized by the law organizing it taking effect, yet the court expressly recognized the doctrine that the assessor could not have been an assessor de facto before that time, for the reason that the office of assessor had no legal existence until the law went into operation. The court say, "it is insisted by the learned counsel for the appellants, that the officers so elected and serving in said town, although elected without authority of law, were in office by color of an election, and are therefore officers de facto, if not de jure, and as to the public their acts are as binding as though they had been legally elected. This proposition is well settled and abundantly supported by the decisions of this court, if it be admitted that the town of Pine River existed as a town after the publication of this act, April 18, 1886, so that the town offices were created by the act and might be filled by officers duly elected or appointed. The important question in this case is this therefore, whether the act above quoted, when it took effect, by its publication created the town of Pine River, as well as the other towns mentioned,

and so created town offices, to be filled by town officers, or whether these towns were only created after a lawful election of town officers was had in said towns. On the part of the respondent it is claimed that as the act did not take effect until it was published, it must be construed with reference to that fact, and from that point of time; and that sections 5, 6 and 7 of the act, which provide for the election of town officers read with reference to the date of publication, fix the day of election on the first Tuesday of April, 1876. He also insists that it is clear, from the reading of section 8 of the act, that the Legislature did not intend, so far as the act created new towns in the county of Lincoln, that it should have any effect until the officers of the town were elected as provided in the act. Under

this construction of the act there was no town of Pine River in the county of Lincoln, in 1876, consequently there were no town offices of such town to be filled by officers either de facto or de and all taxes assessed and levied by any nded officers of said town were simply void, and the attempts to assess and levy the same were mere acts of usurpation, having no binding effect upon any one. The conclusion drawu by the learned counsel for the respondent upon this construction of the act is undoubtedly logical." But the officer is only a de facto officer even after the office comes into existence. Commonwealth v. Fowler, 10 Mass. 290.

In Cole v. Village of Black River Falls, 57 Wis. 110, the court say: "If the office exist de jure, then it is a settled doctrine of this court as well as of other courts, that all persons who are in the exercise of the duties of such office by color of law are officers de facto, and their acts are valid."

In Petition of Hinkle, 31 Kans. 712, it was most emphatically held by all the judges, that the destruction of a township destroyed the town offices, and that thereafter there could be no such thing as a de facto officer in such town. The court say, "if there be no township there are no township offices to fill, and if there are no township offices, there can be no justice of the peace within such territory. When a township is abolished or destroyed, there are no offices left, for there is neither a constitutional nor statutory office to fill. When a township is destroyed the township offices must go with it. The mere exercise of the functions of an alleged office will not be sufficient to make a person either a de jure or de facto officer. From the considerations of public policy the acts of a de facto officer are valid and binding as to the public and third persons, yet where there is no office constitutional or statutory, a person by pretending to exercise the office unknown to the law cannot be deemed to be an officer de facto. There can be no de facto officer where there is no office."

In re Boyle, 9 Wis. 264, sustains this doctrine. In this case the petitioner sought discharge on habeas corpus, on the ground that the judge by whom she had been convicted and committed to jail was not a de facto judge, for the reason that at the time of his election the act establishing the court of which he had been elected judge had not yet taken effect. But as the law subsequently to his election took effect, and as the petitioner was convicted subsequently to its going into operation, the court of course held that the judge was at least a de facto officer, for the reason that at the time petitioner was convicted the court and office had come into existence. The court say, "yet an election having been held and they (the judge and clerk) elected and having entered upon the actual exercise of the duties of the offices, we think after the law became operative so that the offices were legal, they were officers de facto."

In re Ah Lee, 5 Fed. Fed. 899, the court inclines to the same doctrine.

The legality of the petitioner's imprisonment had been attacked upon the ground that the judge under whose authority he was imprisoned was not even a de facto judge. The third point urged by the counsel for petitioner was, "that a person cannot be considered an officer de facto unless the office he is said to be in legally exists, but there being no such office of the Circuit judge or judge of the Circuit Court established by the Constitution, the person who acted as the judge on the trial of the petitioner in the court below was not even a de facto officer or judge." The court said as to the third point: "It is sufficient to say that the Constitution in effect creates a Circuit Court in each county, to be held by a justice of the Supreme Court or Circuit judge as the case may be, and such court is the office of the judge who holds it." The necessity of the existence of a legal office to warrant a court in holding that there is a de facto officer holding the office, is recognized by Judge Dillon in his work on Municipal Corporations, He says: "But in order that there may be a de facto officer, there must be a de jure office, and the notion that there can be a de facto office has been characterized as a political solecism, without foundation in reason and without support in law." Section 276.

In Norton v. Shelby County, 118 U. S. 425; the validity of certain bonds depended upon the solution of the question whether the county commissioners by whom the bonds were issued were de facto officers. The court held that as the act creating the board was unconstitutional, there was no such office as that of county commissioners, and that therefore the persons who claimed to act as the board of county commissioners, and who as such officers issued the bonds in question, were not de facto officers. The court say, "but it is contended that if the act creating the board was void, and the commissioners were not officers de jure, they were nevertheless officers de facto, and the acts of the board as a de facto court are binding upon the county. This contention is met by the fact that there can be no officer, either de jure or de facto, if there be no office to fill."

"As the act attempting to create the office of commis. sioner never became a law, the office never came into existence. Some persons pretended that they held the office, but the law never recognized their pretensious, nor did the Supreme Court of the State.

"Whenever such pretensions were considered in that court, they were declared to be without any legal foundation, and the commissioners were held to be usurpers. The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon consideration of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices, and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until, in some regular mode prescribed by law, their title is investigated and determined. It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question. But the idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an officer who holds no office, and a public office can exist only by force of law. This seems to us so obvious that we should hardly feel called upon to consider any adverse opinion on the subject, but for the earnest contention of plaintiff's counsel that such existence is not essential, and that it is sufficient if the office be provided for by any legislative enactment, however

invalid. Their position is that a legislative act, though unconstitutional, may in terms create an office, and nothing further than its apparent existence is necessary to give validity to the acts of its assumed incumbent.

"That position, although not stated in this broad form, amounts to nothing else. Is is difficult to meet it by any argument beyond this statement. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.

"In Hildreth v. McIntire, 1J. J. Marsh. 206, we have a decision from the Court of Appeals of Kentucky, which will illustrate this doctrine. The Legislature of that State attempted to abolish the Court of Appeals established by her Constitution, and create in its stead a new court. Members of the new court were appointed, and undertook to exercise judicial functions. They dismissed an appeal because the record was not filed with the person acting as their clerk. A certificate of the dismissal signed by him was received by the lower court, and entered on the record, and execution to carry into effect the original decree was ordered to issue. To reverse this order an appeal was taken to the constitutional Court of Appeals. The question was whether the court below erred in obeying the mandate of the members of the new court, and its solution depended upon another, whether they were judges of the Court of Appeals, and the person acting as their clerk was its clerk. The court said: 'Although they assumed the functions of judges and clerk, and attempted to act as such, their acts in that character are totally null and void, unless they had been regularly appointed under and according to the Constitution. A de facto Court of Appeals cannot exist under a written Constitution which ordains one Supreme Court, and defines the qualifications and duties of its judges, and prescribes the mode of appointing them. There cannot be more than one Court of Appeals in Kentucky as long as the Constitution shall exist, and that must necessarily be a court de jure. When the government is entirely revolutionized, and all its departments usurped by force or the voice of a majority, then prudence recommends and necessity enforces obedience to the authority of those who may act as the public functionaries, and in such a case the acts of a de facto executive, a de facto judiciary, and a de facto Legislature must be recognized as valid. But this is required by political necessity. There is no government in action except the government de facto, because all the attributes of sovereignty have by usurpation been transferred from those whose have been legally invested with them to others, who sustained by a power above the forms of law, claim to act, and do act in their stead. But when the Constitution or form of government remains unaltered and supreme, there can be no de facto department or de facto office. The acts of the incumbents of such departments of office cannot be enforced conformably to the Constitution, and can be regarded as valid only when the government is overturned.

"When there is a constitutional executive and Legislature, there cannot be any other than a constitutional judiciary. Without a total revolution, there can be no such political solecism in Kentucky as a de facto Court of Appeals. There can be no such court while the Constitution has life and power. There has been none such. There might be under our Constitution, as there have been, de facto officers; but there never was, and never can be, under the present Constitution, a de facto office." And the court held that the gentlemen who acted as judges of the legislative tribunal were not incumbents of de jure or de facto offices, nor were

they de facto officers of de jure offices, and the order below was reversed." ** * *

"Numerous cases are cited in which expressions are used, which read apart from the facts of the cases, seemingly give support to the position of counsel. But when read in connection with the facts, they will be seen to apply only to the invalidity, irregularity and unconstitutionality of the mode by which the party was appointed or elected to a legally existing office. None of them sanctioned the doctrine that there can be a de facto office under a constitutional government, and that the acts of the incumbents are entitled to consideration as valid acts of a de facto officer."

The court then review the leading case (State v. Carroll, 38 Conn. 449), and thus refer to the opinion of Chief Justice Butler in that case. "Of the great number of cases cited by the chief justice, none recognizes such a thing as a de facto office, or speaks of the person as a de facto officer except when he is the incumbent of a de jure office.

"The fourth head refers not to the unconstitutionality of the act creating the office, but to the unconstitutionality of the act by which the officer is appointed to an office legally existing. That such was the meaning of the chief justice is apparent from the cases cited by him in support of the last position, to some of which reference will be made." After referring to some of these cases the court continues: "It is evident from the construction of these cases that the learned chief justice, in State v. Carroll, had reference in his fourth subdivision, as we have said, to the unconstitutionality of acts appointing the officer, and not of acts creating the office." And in conclusion on this point the court says: "None of the cases cited militates against the doctrine, that for the existence of a de facto officer, there must be an office de jure, although there may be loose expressions in some of the opinions not called for by the facts, seemingly against this view. Where no office legally exists, the pretended officer is merely a usurper, to whose acts no validity can be attached; and such in our judgment was the position of the commissioners of Shelby county, who undertook to act as the County Court, which could be constitutionally held only by justices of the peace."

However there are authorities that take a contrary view of this question.

In Burt v. Winona, 31 Minn. 472, it was claimed that the judgment of the Mankato municipal court was void for the reason that the act creating the court did not receive a vote of two-thirds of the entire Senate. It can hardly be said that the Supreme Court of Minnesota in this case decided the question whether there could be a de facto office, as the chief justice, by whom the prevailing opinion was written, seems to have held that whether the act had been passed by a sufficient vote could be raised only in a direct proceeding to contest the title of the officer to the office created by the act where the act has been duly authenticated. He says: "The act in question having been authenticated in a proper manner and approved by the governor, and the subject of it being within the constitutional power of the Legislature, was under the presumption stated in State v. Hastings, supra, prima facie, a valid law, and the court attempted to create prima facie a legal court. It was therefore within the principle we have stated, a court de facto."

This view is strengthened by the fact that Judge Mitchell who dissented, and with whom Judge Berry concurred, says: "I concur in the conclusion that under the facts of this case the legal existence of the municipal court of Mankato cannot be attacked collaterally in this action, but only by direct proceeding for that purpose, and this as I understand it is, strictly speaking, the only matter properly before us at this

time." But the views of the chief justice on this point, that there can be a de facto office, are supported with considerable force. He says: "Whether there can be a de facto office, a de facto court, is the important question in this case, and it is of no small difficulty. While there have been a great many cases in which it was attempted to call in question, in a collateral proceeding the legal right of an officer to hold office, there have been few where the legal existence of the office itself was contested. The reason given for the de facto doctrine applies as well to offices and courts as to officers. Said the court in State v. Carroll, 38 Conn. 467. 'The

It

de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interests of the public and individuals whose interests were involved in the official acts of persons exercising the duties of an office without being lawful officers.' would be a matter of almost intolerable inconvenience, and be productive of many instances of individual hardship and injustice, if third persons, whose interests or necessities require them to rely upon the acts of the occupants of public offices should be required to ascertain at their peril the legal right to the offices which such incumbents are permitted by the State to occupy. Taking even the narrowest definition of an officer de facto, viz., that he is one who is exercising the duties of an office under color of legal right to the office, the reasons that justify the doctrine apply with equal force to court or office where the same may be said to exist under color of right; that is under color of law."

After reviewing several cases, the chief justice concludes on this point: "In view of these authorities and of the reason that underlies the rule applied to acts of persons in the actual exercise, under certain circumstances, of the duties of public officers and of the great public mischiefs that might some time arise, but for the application of the rule to courts, we arrive at the conclusion that there may be de facto courts or offices, the legality of whose existence cannot be questioned, except in a direct proceeding by the State for the purpose."

From these views of the chief justice, Judge Mitchell, Judge Berry concurring with him, most emphatically dissents. He says: "But I am unable to concur in the views expressed in the majority opinion, that even if the act creating the court was never constitutionally passed, still it would be a de facto court. The logical result of this would be that a person assuming to act as judge of that court would be an officer de facto, and the judgments of the court as valid as those of a legal court. To borrow an expression from the majority opinion, I think that a de facto court or office is a political solecism. The idea of an officer de facto presupposes the existence of a legal office. It seems to me that there cannot be an officer de facto unless there is a legal office, so that there might be an officer de jure. There are many cases to the effect that a person holding an office under an unconstitutional law is an officer de facto, but I think that in every one it will be found that there was a legal office, and that the law only went to the mode or manner of filling it. As suggested in the opinion, the de facto doctrine is founded on reasons of public policy and necessity, but it must have some reasonable limit unless we are ready to recognize practical revolution and legislative right to ignore all constitutional barriers."

The case of State v. Rich, 20 Mo. 393, seems to support the views of the chief justice. So does the case of Frazer v. Freeland, 53 Cal. 644, but in this latter case this view would have led to the affirmance of the judgment, and as the judgment was reversed on the ground that the court never acquired jurisdiction of the defendant, what was said by the court was only obiter.

The court said: "When the complaint is that a person usurps an office, the action must be brought in the name of the people, in quo warranto or some other appropriate form of action to determine the right to the office. That matter cannot be litigated indirectly in an action between private parties. It is manifest that the question whether the office itself, which was attempted to be created by statute, has a legal existence, is of vastly more importance and of greater interest to the public than the question of the right of the incumbent." In Trumbo v. People, 75 Ill. 561, it was held that a school-district had not been legally established, and that so far as the alleged district was concerned, there was no de jure office of school director of such schooldistrict, and yet the court held that the school-district tax levied by persons assuming to be, and acting as school directors, was a valid tax.

In Leach v. People (Ill.), 12 N. W. Rep. 726, an objection was made to the tax on the ground that it was levied to pay interest on bonds issued under the authority of the board of supervisors elected under an unconstitutional law. While the court held that the members of the board of supervisors were de facto officers, it did not decide the question whether there could be a de facto officer, unless there was a de jure office, because the judge by whom the prevailing opinion was written expressly held that the offices of supervisors, to which the persons issuing the bonds had been elected under an unconstitutional law, were valid offices. He says: "There was all the while the legally established office or official body of the board of supervisors of Wayne county."

This is apparent for the further reason that the case of Norton v. Shelby County, already referred to, was cited in the prevailing opinion and in no manner criticised, although this case, as we have seen, expressly decides that there can be no de facto officer unless there is a de jure office. Referring to this case the court in the prevailing opinion say, "but it is said that this principle applies only where there is a de jure office for a de facto officer to fill, citing the recent case of Norton v. Shelby County, 118 U. S. 425, as so holding, and it is insisted there there was no de jure board of supervisors of Wayne county.

Wherever a township organization prevails there is in every county a board of supervisors for the transaction of the affairs of the county. The act in question merely changes the number of the members of the board from fifteen to five, and the mode of election from towns singly to two or more and the term of office. Nothing was added to or taken from the powers or duties of the board. After the passage of the act there still remained the board of supervisors of Wayne county, the official body of the management of the county affairs."

And Magruder, J., Schofield, J., concurring with him, dissented from the prevailing opinion on the ground that the offices to which the board of supervisors, whose acts were called in question, were elected, had no legal existence, as the law creating them was unconstitutional and that therefore these persons were not supervisors de facto. He says: "It is however urged that the five district supervisors who issued the bonds in question were officers de facto, and that their acts, as such de facto officers, are valid and binding so far as the rights of third persons are concerned. I do not think that this position is tenable under the facts of this case. There are some authorities which hold that an act of the Legislature, even if it be unconstitutional, is sufficient to give color of title, and that an officer acting under it is an officer de facto. But the cases which lay down this doctrine will be found, upon a careful analysis, to refer. not to the unconstitutionality of the act creating the office, but to the unconstitutionality of the act by which the officer