by a good title in law, and that the appointing power may at once be exercised to fill it, or if it is an elective office, the people may elect, and no adjudication is required to declare the vacancy, although the newly-appointed or elected officer may find it necessary afterwards to resort to quo warranto proceedings to obtain actual possession of the office. Under the old rule of the common law, that upon accepting another and incompatible office the first became vacant and the occupant refused to abandon it, a writ of quo warranto to determine the question of incompatibility was the remedy; and where the common law has been superseded by statutes declaring a vacancy under like circumstances and the occupant remains, a similar course must be pursued to obtain possession or such other steps as the facts may warrant. There are familiar precedents in our own state which illustrate the rules here stated. In Clark v. Ennis, 16 Vroom 69-72, the court said: "It is clear, both upon reason and authority, that a statute declaring an office vacant for some act or omission of the incumbent after he enters upon his duties, does not execute itself." Also, Clawson v. Thompson, Spenc. 689; also, State v. Parkhurst, 4 Halst. 427, with a difference only in the attitude of the parties. The governor having appointed Parkhurst in Ogden's absence, the new officer took possession and Ogden became the prosecutor to regain possession. Had Ogden remained the title of the case would have been State v. Ogden, with the same result. The same practice prevails in other states, and the rule is clearly stated in State v. Jones, 19 Ind. 356, where it is said: "Where it appears, prima facie, that acts or events have occurred subjecting an office to a judicial declaration of being vacant, the authority authorized to fill such vacancy, supposing the office to be vacant, may proceed before procuring a judicial declaration of the vacancy and appoint or elect, according to the forms of law, a person to fill such office; but if, when such person attempts to take possession of the office, he is resisted by the pervious incumbent, he will be compelled to try the right and oust the incumbent, or fail to oust him, in some mode prescribed by law." Smith, then, being in the office under color of a legal title, ab origine, and no other person claiming a right to it, was he a commissioner de facto? Lord Ellenborough, in 1805, in Rex v. Bedford Level, 6 East 356, said: "An officer de facto is one who has a reputation of being an officer, who assumes to be and yet is not a good officer in point of law." This definition has never been questioned, and all those given by the text-writers since are little more than variations of this one. Tested by this ancient or any modern definition, Smith must be held to have been such an officer when this ordinance was passed. He certainly had color of title and reputation, for the legal voters of Jersey City elected him in the spring of 1898 a member of the board for a term of three years, and he duly qualified as such and entered upon his duties with full knowledge and acquiescence of the public. He had never resigned. The board had not been abolished. and his term had not expired. It has been urged and the record shows that he had been absent from several meetings of the board, but it cannot be held that a vacant chair in itself makes a vacant office. Such a rule would work bad results in most of our legislative and governing bodies. The question in a case like this is not whether a member has been frequently absent but whether he was present and voted when the ordinance was adopted. He did not assert a right which any other person claimed, or perform any official duties that anyone else pretended to have any right to perform in his stead, but only those duties which belonged to the office he was elected to fill and which the law contemplated should be done and the public expected him to do when they elected him, for the law creating the board provides that the judgment and wisdom of five commissioners should determine the questions that arise in the passage of ordinances concerning the streets. The board also recognized his membership. He participated in their proceedings, his name was called and vote recorded in the adoption of ordinances, and if not present his absence was duly noted in the official minutes. With all these facts and circumstances appearing in the record, and undisputed, we must hold that Smith was a commissioner de facto. This conclusion is in accord, we think, with the decisions in this state and elsewhere on this subject. There are no facts in this case to justify us in relaxing the wise and ancient rule so deeply rooted in public policy, that the acts of de facto officers holding under color of title originally lawful, when acting in good faith, will protect third persons and the public in their dealings with them, whether serving alone or as members of a governing or legislative body. The ordinance in question is one of interest to all of the people of Jersey City, and they are the public whose rights are affected by its validity. The third persons whose rights are involved are the more than four hundred residents and taxpayers in the neighborhood where it is to go into effect, who petitioned the board to pass it, claiming that it will be of benefit to them, and another third party, corporate, is the railway company to which the right is granted to lay the tracks that will, it is alleged, greatly add to the convenience of a system of public traffic extending from Communipaw cove to the great lakes. The learned counsel for the prosecutor have invited our attention to many cases, but we fail to discover their applicability to the facts in the record before us. There can be no difference of opinion as to all such as hold that when a person filling one office accepts another and incompatible one, his de jure title to the first ceases, and his successor may at once be appointed or elected, or that the acts of an officer whose term has ended and his successor had qualified and taken possession in his stead are void, or that the official acts of a city council done after the term for which it was elected has expired are illegal; also the acts of a board after it has been abolished by the legislature, or that the acts of one who has not, and never had, any color of title to the office are void. But this case rests entirely upon the question whether Smith when he voted for the ordinance in dispute was an officer de facto, and his acts, therefore, valid as far as the rights of third parties and the public are concerned. We hold that he was such an officer, and that the ordinance is valid. This conclusion results in a reversal of the judgment of the Supreme Court setting aside the ordinance. For affirmance-GUMMERE, 1. For reversal-THE CHIEF JUSTICE, DIXON, GARRISON, LUDLOW, BOGERT, NIXON, HENDRICKSON, ADAMS, VREDENBURGH, 9. One who is ineligible for an office but becomes an incumbent thereof is a de facto officer. Attorney General v. Marston, 66 N. H. 485, infra. So also is one who holds over after the expiration of his term. Romero v. United States, 24 Ct. of Cl. 441. NOFIRE V. UNITED STATES. Supreme Court of the United States. October, 1896. Mr. Justice BREWER delivered the opinion of the court. Plaintiffs in error were indicted in the Circuit Court of the United States for the Western District of Arkansas for the murder of Fred. Rutherford "at the Cherokee Nation in the Indian country," on December 15, 1895. They were tried in May, 1896, found guilty by the jury, and, on June 12, the verdict having been sustained, they were sentenced to be hanged. The principal question, and the only one we deem it necessary to notice, is as to the jurisdiction of the court. The defendants were full-blooded Cherokee Indians. The indictment charged that Rutherford was "a white man and not an Indian," but testimony was offered for the purpose of showing that although a white man he had been adopted into the Cherokee Nation, which, if proved, would oust the Federal court of jurisdiction within the rule laid down in Alberty v. United States, 162 U. S. 499. In that case it was held that the courts of the Nation have jurisdiction over offenses committed by one Indian upon the person of another, and this includes, by virtue of the statutes, both Indians by birth and Indians by adoption. The Cherokee Nation claimed jurisdiction over the defendants. This claim was denied by the Circuit Court, which held that the evidence of Rutherford's adoption by the Nation was not sufficient, and that therefore the United States court had jurisdiction of the offense. An amendment in 1866 to section 5 of article 3 of the Cherokee constitution gives the following definition of citizenship: "All native-born Cherokees, all Indians and whites legally members of the Nation by adoption, and their descendants, who reside within the limits of the Cherokee Nation, shall be taken and be deemed to be citizens of the Cherokee Nation." (Laws of Cherokee Nation, 1892, p. 33.) The Cherokee statutes make it clear that all white men legally married to Cherokee women and residing within the Nation are adopted citizens. (Sections 659, 660, 661, 662, 663, 666 and 667, Laws of the Cherokee Nation, 1892, pp. 329, and following.) Section 659 requires that before such marriage shall be solemnized the parties shall obtain a license from one of the district clerks. Sections 660 and 661 provide that one applying for such license shall present to the clerk a certificate of good moral character, signed by at least ten respectable citizens of the Cherokee Nation, and shall also take an oath of allegiance. On October 4, 1894, Rutherford was married to Mrs. Betsy Holt, a Cherokee woman. The marriage license, with the certificate of the minister of the performance of the ceremony, and the indorsement of the record of the certificate, is as follows: "To any person legally authorized, greeting: You are hereby authorized to join in the holy bonds of matri mony and celebrate the rites and ceremonies of marriage between Mr. Fred. Rutherford, a citizen of the United States, and Miss Betsy Holt, a citizen of the Cherokee Nation, and you are required to return this license to me for record within thirty days from the celebration of such marriage, with a certificate of the same appended thereto and signed by you. "Given under my hand and seal of office this the 28th day of August, 1894. (Seal of Tahlequah district, Cherokee Nation.) "R. M. DENNENBERG, "Deputy Clerk, Tahlequah District." The performance of the marriage ceremony was also proved by the minister a regularly ordained Presbyterian preacher. T. W. Triplett was the clerk of the Tahlequah district at the date of this certificate. R. M. Dennenberg was his deputy, but at the time of the issue of the license both the clerk and his deputy were absent, and the signature of the deputy was signed by John C. Dennenberg, his son. The clerk, the deputy and his son, each testified that the latter was authorized to sign the name of the clerk or the deputy in the absence of either, and that the business of the office was largely transacted by this young man, although not a regularly appointed deputy. He made quarterly reports, fixed up records and issued scrip, and his action in these respects was recognized by the clerk and the Nation as valid. No petition, as required by the statute, was found among the papers of the office, but there was testimony that all the papers of the office had been destroyed by fire since the date of the marriage license, and the younger Dennenberg testified that a petition was presented containing the names of ten citizens; that he could not remember the names, but, at the time, made inquiry and satisfied himself that they were all respectable Cherokee citizens. There was testimony also that Rutherford offered to vote at an election subsequent to his marriage; that his vote was challenged, and on inquiry it was ascertained that he was a Cherokee citizen, and his vote received. Upon these facts the question is presented whether Rutherford was a Cherokee citizen by adoption. The Circuit Court held that the evidence was insufficient to show that fact, and that therefore that court had jurisdiction. With this conclusion we are unable to concur. The fact that an official marriage license was issued carries with it a presumption |