D. E. Holbrook, J.
On August 5, 1977, an Isabella County acting circuit judge set aside the previous appointment by an Isabella County circuit judge of a special prosecutor to investigate possible criminal activity in the sheriffs department. The people appeal as of right.
On June 9, 1977, the Isabella County Prosecuting Attorney petitioned the Isabella County circuit court for the appointment of a special prosecutor. The petition states as follows:
"NOW COMES Joseph T. Barberi, Prosecuting Attorney in and for Isabella County, Michigan, and respectfully shows unto this Honorable Court as follows:
"That an investigation needs to be conducted pertaining to the sale of a .38 calibur [sic] S&W Revolver, serial number D138195 previously reported as being stolen, said sale allegedly being made by a Deputy Sheriff.
"That a conflict of interest exists with regard to such investigation for the reason that a close working rela[518]*518tionship exists between the Prosecuting Attorney’s Office and the Isabella County Sheriffs Department. The Prosecuting Attorney’s Office also is defending the Sheriffs Department in a civil law suit in which the possible Defendant is one of the alleged witnesses.
"That because of the conflict of interest, your Petitioner prays that a Special Prosecuting Attorney be appointed by the Court to conduct the investigation herein mentioned.
"Accordingly, your Petitioner prays that TIMOTHY J. TAYLOR, Attorney at Law, a member of the Isabella County Bar, be appointed by the Court to act as Special Prosecutor in this matter, with authority to perform all the duties and discharge all the functions of such office in relation to the investigation herein mentioned.”
The prosecutor’s petition was granted by an Isabella County circuit judge as follows:
"The Court having been advised that the duly elected Prosecuting Attorney of Isabella County, Joseph T. Barberi, will not be in a position to serve the People in the matter of the investigation of the sale of a stolen revolver because of a conflict of interest due to the close working relationship between the Prosecuting Attorney’s Office and the Isabella County Sheriffs Department,
"IT IS HEREBY ORDERED that Timothy J. Taylor, a member of the Isabella County Bar, is HEREBY appointed to act as Special Prosecuting Attorney of Isabella County, with authority to perform all the duties and discharge all the functions of the office of Prosecuting Attorney insofar as they pertain to the investigation herein mentioned.”
The special prosecutor conducted an investigation into the matter and on June 13, 1977, authorized the issuance of a warrant which charged the defendant with embezzlement or fraudulent conversion of certain property less than $100 in value. On July 11, 1977, the special prosecutor autho[519]*519rized the issuance of an "amended” warrant which charged defendant with additional counts of forging a public record with intent to defraud, receiving and concealing stolen property less than $100, and a failure to present a firearm for safety inspection.
At the preliminary examination held on July 21, 1977, the forgery and fraudulent conversion counts were dismissed on the grounds of insufficient evidence. The defendant then filed a motion in circuit court to set aside the circuit judge’s appointment of the special prosecutor. This motion was heard by the Isabella County probate judge who was sitting on assignment in the circuit court. On August 9, 1977, the acting judge entered an order setting aside the appointment of the special prosecutor and dismissing the warrants authorized by him. On August 5, 1977, the judge in his opinion wrote:
"In conclusion it is the opinion of this judge, after a careful and exhaustive search of the Michigan law, that while a circuit judge may appoint a special prosecuting attorney to act in Circuit Court, he may not appoint such a special prosecutor to investigate a criminal complaint, authorize warrants, or appear in misdemeanor cases and preliminary examinations in the district court.” (Emphasis in original.)
On August 9, 1977, the judge entered the following order:
"The Court having considered the Motion of the Defendant, Lee Howard Davis, to set aside the Order appointing Timothy J. Taylor Special Prosecuting Attorney and the Court having considered the oral arguments of the parties and having considered the Briefs of the parties and the law, and having determined that the Order should be set aside;
[520]*520"IT IS HEREBY ORDERED that the Order of June 9, 1977 appointing Timothy J. Taylor Special Prosecuting Attorney be and is hereby set aside.
"IT IS FURTHER ORDERED that the warrants which were authorized by the said Timothy J. Taylor be and are hereby dismissed.”
The first issue raised on appeal is whether the circuit judge has statutory authority to appoint a special prosecutor to investigate possible criminal activity, issue warrants and initiate prosecution in district court.
On appeal the prosecutor asserts that the circuit court has inherent and statutory authority to appoint a special prosecutor for proceedings in district court. The defendant disagrees.
The power of the circuit court to appoint a special prosecutor is provided for in MCL 49.160; MSA 5.758, as follows:
"The supreme court and each of the circuit courts may whenever there shall be no prosecuting attorney for the county or when the prosecuting attorney shall be absent from the court, or unable to attend to his duties, if either of said courts shall deem it necessary, by an order to be entered in the minutes of such court, appoint some other attorney at law to perform, for the time being, the duties required by law to be performed in either of said courts by the prosecuting attorney, who shall thereupon be vested with all the powers of such prosecuting attorney for that purpose.”
A statute (How Stat § 559) which is identical to MCL 49.160; MSA 5.758 was construed by the Michigan Supreme Court in Sayles v Circuit Judge of Genesee County, 82 Mich 84; 46 NW 29 (1890). The acting circuit judge relied on this case when he held that MCL 49.160; MSA 5.758 does not authorize circuit judges to appoint special prosecu[521]*521tors to investigate possible crime, issue warrants and initiate prosecution in the district court.
The facts in the Sayles case indicate that Mr. Mallery wanted Mr. Sayles prosecuted for forgery. The prosecutor issued a warrant, but before the preliminary examination, he went into a copartnership with the attorneys who represented Sayles. The prosecutor disqualified himself in the case and requested that a special prosecutor be appointed. The circuit judge appointed a special prosecutor. The special prosecutor appeared before the justice of the peace who would conduct the preliminary examination and stated that he did not take an enthusiastic interest in prosecuting the case. The justice of the peace then dismissed the case. Mr. Mallery then petitioned the circuit court to appoint a special prosecutor to investigate the facts and institute criminal proceedings, if necessary.
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D. E. Holbrook, J.
On August 5, 1977, an Isabella County acting circuit judge set aside the previous appointment by an Isabella County circuit judge of a special prosecutor to investigate possible criminal activity in the sheriffs department. The people appeal as of right.
On June 9, 1977, the Isabella County Prosecuting Attorney petitioned the Isabella County circuit court for the appointment of a special prosecutor. The petition states as follows:
"NOW COMES Joseph T. Barberi, Prosecuting Attorney in and for Isabella County, Michigan, and respectfully shows unto this Honorable Court as follows:
"That an investigation needs to be conducted pertaining to the sale of a .38 calibur [sic] S&W Revolver, serial number D138195 previously reported as being stolen, said sale allegedly being made by a Deputy Sheriff.
"That a conflict of interest exists with regard to such investigation for the reason that a close working rela[518]*518tionship exists between the Prosecuting Attorney’s Office and the Isabella County Sheriffs Department. The Prosecuting Attorney’s Office also is defending the Sheriffs Department in a civil law suit in which the possible Defendant is one of the alleged witnesses.
"That because of the conflict of interest, your Petitioner prays that a Special Prosecuting Attorney be appointed by the Court to conduct the investigation herein mentioned.
"Accordingly, your Petitioner prays that TIMOTHY J. TAYLOR, Attorney at Law, a member of the Isabella County Bar, be appointed by the Court to act as Special Prosecutor in this matter, with authority to perform all the duties and discharge all the functions of such office in relation to the investigation herein mentioned.”
The prosecutor’s petition was granted by an Isabella County circuit judge as follows:
"The Court having been advised that the duly elected Prosecuting Attorney of Isabella County, Joseph T. Barberi, will not be in a position to serve the People in the matter of the investigation of the sale of a stolen revolver because of a conflict of interest due to the close working relationship between the Prosecuting Attorney’s Office and the Isabella County Sheriffs Department,
"IT IS HEREBY ORDERED that Timothy J. Taylor, a member of the Isabella County Bar, is HEREBY appointed to act as Special Prosecuting Attorney of Isabella County, with authority to perform all the duties and discharge all the functions of the office of Prosecuting Attorney insofar as they pertain to the investigation herein mentioned.”
The special prosecutor conducted an investigation into the matter and on June 13, 1977, authorized the issuance of a warrant which charged the defendant with embezzlement or fraudulent conversion of certain property less than $100 in value. On July 11, 1977, the special prosecutor autho[519]*519rized the issuance of an "amended” warrant which charged defendant with additional counts of forging a public record with intent to defraud, receiving and concealing stolen property less than $100, and a failure to present a firearm for safety inspection.
At the preliminary examination held on July 21, 1977, the forgery and fraudulent conversion counts were dismissed on the grounds of insufficient evidence. The defendant then filed a motion in circuit court to set aside the circuit judge’s appointment of the special prosecutor. This motion was heard by the Isabella County probate judge who was sitting on assignment in the circuit court. On August 9, 1977, the acting judge entered an order setting aside the appointment of the special prosecutor and dismissing the warrants authorized by him. On August 5, 1977, the judge in his opinion wrote:
"In conclusion it is the opinion of this judge, after a careful and exhaustive search of the Michigan law, that while a circuit judge may appoint a special prosecuting attorney to act in Circuit Court, he may not appoint such a special prosecutor to investigate a criminal complaint, authorize warrants, or appear in misdemeanor cases and preliminary examinations in the district court.” (Emphasis in original.)
On August 9, 1977, the judge entered the following order:
"The Court having considered the Motion of the Defendant, Lee Howard Davis, to set aside the Order appointing Timothy J. Taylor Special Prosecuting Attorney and the Court having considered the oral arguments of the parties and having considered the Briefs of the parties and the law, and having determined that the Order should be set aside;
[520]*520"IT IS HEREBY ORDERED that the Order of June 9, 1977 appointing Timothy J. Taylor Special Prosecuting Attorney be and is hereby set aside.
"IT IS FURTHER ORDERED that the warrants which were authorized by the said Timothy J. Taylor be and are hereby dismissed.”
The first issue raised on appeal is whether the circuit judge has statutory authority to appoint a special prosecutor to investigate possible criminal activity, issue warrants and initiate prosecution in district court.
On appeal the prosecutor asserts that the circuit court has inherent and statutory authority to appoint a special prosecutor for proceedings in district court. The defendant disagrees.
The power of the circuit court to appoint a special prosecutor is provided for in MCL 49.160; MSA 5.758, as follows:
"The supreme court and each of the circuit courts may whenever there shall be no prosecuting attorney for the county or when the prosecuting attorney shall be absent from the court, or unable to attend to his duties, if either of said courts shall deem it necessary, by an order to be entered in the minutes of such court, appoint some other attorney at law to perform, for the time being, the duties required by law to be performed in either of said courts by the prosecuting attorney, who shall thereupon be vested with all the powers of such prosecuting attorney for that purpose.”
A statute (How Stat § 559) which is identical to MCL 49.160; MSA 5.758 was construed by the Michigan Supreme Court in Sayles v Circuit Judge of Genesee County, 82 Mich 84; 46 NW 29 (1890). The acting circuit judge relied on this case when he held that MCL 49.160; MSA 5.758 does not authorize circuit judges to appoint special prosecu[521]*521tors to investigate possible crime, issue warrants and initiate prosecution in the district court.
The facts in the Sayles case indicate that Mr. Mallery wanted Mr. Sayles prosecuted for forgery. The prosecutor issued a warrant, but before the preliminary examination, he went into a copartnership with the attorneys who represented Sayles. The prosecutor disqualified himself in the case and requested that a special prosecutor be appointed. The circuit judge appointed a special prosecutor. The special prosecutor appeared before the justice of the peace who would conduct the preliminary examination and stated that he did not take an enthusiastic interest in prosecuting the case. The justice of the peace then dismissed the case. Mr. Mallery then petitioned the circuit court to appoint a special prosecutor to investigate the facts and institute criminal proceedings, if necessary. The circuit judge felt that the justice of the peace did not act properly when he discharged Mr. Sayles and appointed George Durand as special prosecutor. The defendant appealed this appointment and the Michigan Supreme Court addressed the issue of the power of a circuit judge to make this appointment.
The Court cited the statute, How Stat § 559, which is exactly the same as MCL 49.160; MSA 5.758, and stated: "This section plainly refers to cases arising in or pending in those courts, and not to cases out of such courts”. 82 Mich at 89. (Emphasis supplied.) The Court went on to say at 90:
"But the circuit judge cannot appoint a special prosecuting attorney to investigate a charge of crime, or to conduct an examination before a justice of the peace. The circuit judge is a conservator of the peace, but that does not authorize him to appoint any one to act as a public prosecutor, except in his own court, in cases over [522]*522which he has jurisdiction. Even then his power is statutory.”
The language of the Supreme Court in Sayles is very specific in its interpretation of a statute which is identical to the statute in the instant case. Thus, we are constrained to hold that the circuit court does not have the power under MCL 49.160; MSA 5.758 to appoint special prosecutors for the purposes here requested. If circuit judges are to have this power, it is up to the Michigan Legislature to so provide or for the Michigan Supreme Court to reconsider the Sayles decision.
The next issue raised on appeal is whether the trial court erred in issuing the order which dismissed the warrants that the special prosecutor ordered.
The plaintiff maintains that the dismissal of the warrants authorized by the special prosecutor was improper because the de facto doctrine will validate them. The defendant alleges that there is no reason to apply the de facto doctrine in the instant case.
The de facto doctrine will validate, on grounds of public policy and prevention of a failure of public justice, the acts of officials who function under color of law. People v Townsend, 214 Mich 267, 270; 183 NW 177 (1921), People v Matthews, 289 Mich 440, 447-448; 286 NW 675 (1939).
In 46 CJ, Officers, § 366, p 1053, it states as follows:
"A person will be held to be a de facto officer when, and only when, he is in possession, and is exercising the duties, of an office; his incumbency is illegal in some respect; he has at least a fair color of right or title to the office, or has acted as an officer for such a length of [523]*523time, and under such circumstances of reputation or acquiescence by the public and public authorities, as to afford a presumption of appointment or election, and induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action; and, in some, although not all, jurisdictions, only when the office has a de jure existence.” (Footnotes omitted.)
Also see, 67 CJS, Officers, § 135, pp 438-440.
In the instant case, the special prosecutor was in possession and exercised the duties of his office. His incumbency was illegal because the circuit judge did not have the power to appoint him, for the purposes intended. However; he had a fair color of title to the office. Therefore, we apply the de facto doctrine to the instant case and hold that the judge erred in dismissing the warrants issued by the special prosecutor. The authority of the de facto officer in this instance could not be attacked collaterally, but required a proceeding instituted directly for that purpose. The instant circuit court action satisfied this requirement. 46 CJ, Officers, §366, p 1054; 67 CJS, Officers, §135, p 440. In affirming the trial court in this regard, we rule that effective with the trial court’s ruling, the de facto status of the special prosecuting attorney ended.
The case may be continued by the attorney general under MCL 14.28; MSA 3.181, or other appropriate manner.
Our holding finds support in one of our sister states. In State v Bell, 84 Idaho 153; 370 P2d 508 (1962), a special prosecutor was appointed because of the close business and personal relationship the prosecutor had with the defendant which made prosecution difficult of performance. The Court found the special prosecutor’s appointment valid [524]*524and went on to say at 84 Idaho 160; 370 P2d 511-512:
"In such case, even though the appointment were defective or irregular, so far as the defendant is concerned the special prosecutor nevertheless became a de facto officer, and his appointment, and the prosecution of the action by him, was not subject to collateral attack by the defendant, in the absence of a showing that he was denied a fair trial by reason thereof.”
We need not address plaintiffs remaining issue.
Affirmed in part and reversed in part. No costs, a public question being involved.
Beasley, J., concurred.