THOMPSON v. COUCH.

OFFICERS DE FACTO OFFICERS - RIGHT TO OFFICE - COLOR OF AUTHORITY-COLLATERAL ATTACK. Where the section of a city charter providing for three justices of the peace is repealed and a provision adopted in its place that there shall be one justice, and that court shall be held in certain cases by other officers, the title to his office of a justice elected under the latter statute cannot be collaterally attacked, even on the ground that, the statute being unconstitutional, there is no office to be filled and therefore no officer; since one elected under an unconstitutional law is a de facto officer until the unconstitutionality is adjudged, and whichever law is in effect, there is such an office as justice of the peace.

Petition by Andrew Thompson against John A. Couch for a writ of prohibition to restrain respondent from assuming jurisdiction as a justice of the peace. Submitted May 26, 1906. (Calendar No. 21,715.) Writ denied July 3, 1906.

Alexander R. Macdonell, for relator.

Warner & Sullivan, for respondent.

MONTGOMERY, J. The relator was defendant in an action involving a trifling sum instituted in the court held by the respondent. Relator, after raising the question of respondent's right to hold the office, has asked this court to issue a writ of prohibition forbidding further proceedings in said cause by respondent. The respondent is assuming to act as a justice of the peace of the city of Sault Ste. Marie, and it appears that he had exercised the duties of such supposed office for nearly four years before this proceeding was instituted. The charter of the city of Sault Ste. Marie (Act No. 533, Local Acts 1887, chap. 3, §1) provided that the officers of the city should consist of

"mayor and three justices of the peace who shall be elected by the qualified voters of the whole city." It also provided for the right of succession and for succeeding elections, and that one justice should be elected each year.

In 1901, by Local Act No. 468, the provision first above quoted was amended by substituting "one justice of the peace" in place of the words "three justices of the peace." The amended statute also provided for the holding of court in certain emergencies by the probate judge or circuit court commissioner. On account of these last provisions the constitutionality of the amendatory act is attacked.

The respondent's counsel contend that the title to this office cannot be tried in this proceeding, that the respondent is at least an officer de facto, and that an officer de facto is as to the public an officer de jure. This rule is well settled and is not controverted by the relator. It is contended, however, that there cannot be a de facto officer of an office which has no existence, and that if the amendatory act is unconstitutional the respondent cannot be held to be a de facto incumbent of an existing office. There are cases which hold that, as an unconstitutional statute is not law, such statute creating an office does not give color of right to an incumbent. 11 Cyc. p. 724; Mechem on Public Offices and Officers, § 326. But where this is held the holding is said not to be inconsistent with the rule that one chosen under color of an election, or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be so, is an officer de facto. The distinction taken by the line of cases referred to may be stated thus: While there can be no such thing as a de facto office, there may be a de facto officer, whose apparent right arises out of action taken by the electorate or the appointing power under the supposed authority of an unconstitutional law before the same is declared unconstitutional. See Mechem on Public Offices and Officers, §§ 318, 327; Walcott v. Wells, 21 Nev. 47 (9 L. R. A. 59).

The present case falls clearly within this distinction. Clearly there is such an office as justice of the peace in the city of Sault Ste. Marie. Whether the old charter or the amendment was in force, a justice of the peace was due to be elected on the day the people chose respondent over his competitor. Respondent was inducted into that office, and became an officer de facto. Whether the distinction was accurately noted in Donough v. Dewey, 82 Mich. 309, may be doubted. That case would seem to go to a greater length than necessary to answer the relator's contention here. We do not in this case decide what rule should be applied if a new office had been created by the amended charter. This is not the complaint. The grievance appears to be that two justices were dispensed with. The office was not wholly abolished, and, as before pointed out, the respondent was elected to an office which a valid law created. His right to hold that office is not open to collateral attack.

The writ is denied, with costs.

CARPENTER, C. J., and OSTRANDER, HOOKER, and MOORE, JJ., concurred.

144 MICH.-43.

WEBB v. WAYNE CIRCUIT JUDGE.

MARRIAGE-SUIT TO ANNUL-ALLOWANCE TO WIFE-POWER OF COURT-STATUTES.

Where suit is brought under section 8618, 3 Comp. Laws, to annul a marriage, the court has power to require the husband to pay money to the wife to enable her to carry on the suit, though there is no statutory authority therefor, either in section 8628, 3 Comp. Laws, or elsewhere; the power being incident to the jurisdiction in such cases.

Mandamus by George B. Webb to compel Flavius L. Brooke, circuit judge of Wayne county, to proceed with the hearing of a bill for divorce. Submitted May 26, 1906. (Calendar No. 21,726.) Writ denied July 3, 1906.

Franklin L. Lord, for relator.

OSTRANDER, J. To a bill to have a marriage declared void upon the ground that at the time of the marriage the wife had a living husband, the bill charging that he still is living and still her husband, the wife filed an answer in which she neither directly affirms nor denies the principal fact alleged, but asserts a valid and legal marriage to relator in Windsor, in the Province of Ontario, followed by eight years of cohabitation. She asks for affirmative relief by way of alimony, temporary and permanent, and a decree of divorce. To the answer a replication was filed, and to the cross-bill a demurrer was interposed. Upon petition, and after a hearing, the court made an order for the payment by complainant to defendant of a solicitor's fee of $15. Complainant did not comply with this order, but brought on the demurrer for hearing, when the court refused to proceed until the order had been obeyed, and made an order denying the motion to proceed with the hearing. It is this order which is in question.

Relator contends that the court had no jurisdiction to make the order for expenses of defendant, because the provisions of 3 Comp. Laws, § 8628, have no application to proceedings under 3 Comp. Laws, § 8618. It is also contended that the court has no discretion in the premises, because the answer of defendant, in substance and effect, admits the invalidity of the marriage.

It is true that the statute does not in terms empower the court to require the husband to pay money to the wife to enable her to carry on a suit like this one. Neither does it in terms embrace the subject of allowances for her support. The power to grant allowances, however, has been held to be incident to divorce cases. Goldsmith v. Goldsmith, 6 Mich. 285; Ross v. Ross, 47 Mich. 185; Haines v. Haines, 35 Mich. 138. The reason asserted in Goldsmith v. Goldsmith, supra, and in Story v. Story, Walk. Ch. (Mich.) 421, for the exercise of this power, is that, without this power in the court, the wife who should have no separate property of her own would be without the requisite means of prosecuting or defending the suit and of supporting herself in the meantime. The same reasoning applies, with equal force, in cases like the present. The power of the court below to make the order is affirmed. The brief for relator admits that, if the court had jurisdiction to make the order, it was and is in force.

The writ is denied, and, as no brief has been filed on the part of respondent, without costs.

CARPENTER, C. J., and MCALVAY, HOOKER, and MOORE, JJ., concurred.