Colton v. Beardsley. and that he had not been removed from his office. And it may be for the interest of the parties that we should consider the case in the light of such evidence. I have no doubt that if such evidence shall be given, the plaintiff cannot recover in this action. The statute has made it the duty of the trustees of school districts, and conferred upon them the power, to call special meetings of the inhabitants of the district liable to pay taxes, whenever they shall deem it necessary and proper. (1 R. 8. 5th ed. 898, § 119, sub. 1.) A clerk of the district is required to give notice of special meetings when the same shall be called by the trustees. (Id. § 118, sub. 2.) A special meeting is required to be held in each district whenever called by the trustees, (Id. 895;) and the inhabitants, when lawfully assembled at any district meeting, have power to choose a trustee as often as the office of trustee is vacant. (Id. 894, § 99, sub. 3.) Under these provisions of the statute, the question whether there is a vacancy in the office of any trustee must be determined in limine by the other trustees. It is a question calling for the exercise of their judgment and discretion, and their action upon it partakes of the character of a judicial act. And it is of the essence and nature of such acts, whether the power to perform them is committed to a court or a body of men or to an individual, that they are final and conclusive, except in a direct proceeding for their reversal; and that they cannot be inquired into or questioned collaterally. When the jurisdiction of an inferior tribunal depends upon a fact which such tribunal is required to ascertain and determine by its decision, such decision is final until reversed in a direct proceeding for that purpose. (Brittain v. Kennard, 1 Brod. & Bing. 432; S. C., 4 Moore, 50. 12 Pick. 572, 582, 583. Ex parte Watkins, 3 Peters, 202, 209. Supervisors of Onondaga Co. v. Briggs, 2 Denio, 33, 34. 11 Wend. 95. Phil. Ev. ch. 1, § 5, note 293. 2 id., Edw. ed., 15 and fol. Weaver v. Devendorf, 3 Denio, 117, 120, and authorities cited. Broom's Leg. Max. 56 to 66. Henderson v. Brown, Colton v. Beardsley. 1 Caines, 90, Kent and Livingston, Js.) The test of jurisdiction in such cases is, whether the tribunal has power to enter upon the inquiry, and not whether its conclusions in the course of it were right or wrong. (1 Q. B. Rep. 66. Reg. v. Bolton, 41 Eng. C. L. Rep. 439. Cave v. Mountain, 1 Man. & Gr. 257; 39 Eng. C. L. Rep. 432.) An act of congress passed February 28, 1795, (1 Stat. at Large, 424,) "provided that whenever the United States shall be invaded or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the president of the United States to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action as he may judge necessary to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he shall think proper." Under this act the president made his requisition upon the state of New York for a portion of her militia. One Mott was summoned to service under this requisition and failed to comply, and was tried by a court martial and fined, and his property was seized to satisfy the fine. He brought replevin in this court, and the defendant justified under the requisition of the president and the proceedings under it. The supreme court gave judgment against the defendant, and the court for the correction of errors affirmed it. The case was removed to the supreme court of the United States, and that court held unanimously (Martin v. Mott, 12 Wheat. 19, 31) that the authority to decide whether the exigency had arisen belonged exclusively to the president, and that his decision was conclusive upon all other persons; that whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts. The case of Vanderheyden v. Young (11 John. 150) arose under the same act of congress, and was similar in its features to those of Martin v. Mott, (supra.) And in that case Spencer, J. Colton v. Beardsley. says: "It is a general and sound principle that whenever the law vests any person with the power to do an act and constitutes him a judge of the evidence on which the act may be done, and at the same time contemplates that the act is to be carried into effect through the instrumentality of agents, the person thus clothed with power is invested with discretion, and is, quo ad hoc, a judge. His mandates to his legal agents on his declaring the event to have happened, will be a protection to those agents; and it is not their duty or business to investigate the facts thus referred to their superior, and to rejudge his determination." In Jenkins v. Waldron (11 John. 114) it was held that officers required by law to exercise their judgment are not answerable for mistakes in law, or mere errors in judgment, without fraud or malice. The case of Wood v. Peake (8 id. 69) is somewhat analogous to the one under consideration, and contains a principle which I think establishes a sure defense in this action. The sixth section of chapter 78, laws of 1801, provided that “if any constable chosen &c. shall refuse to serve, it shall be lawful for the inhabitants of the town to supply such vacancy at a special meeting to be notified and held, &c., and that if the town shall not within 15 days next after such refusal choose another, it shall be lawful for any three justices of the peace residing in or near such towns, and they are required, by warrant under their hands and seals, to appoint every such officer which the town ought to have," &c. Peake sued Wood in the Montgomery common pleas in trespass for taking his property, and Wood justified under an execution issued by a justice of the peace and an appointment of himself as constable under this act, by three justices, which stated that Jonathan Lawrence, one of the constables of the town, had for more than 15 days past refused to serve in his office, and the town not having appointed one in the room or stead of Lawrence, that therefore the three justices appointed (the defendant) Wood a constable. The plaintiff proved the election of Lawrence as a constable, and offered to prove that Colton v. Beardsley. Lawrence never did refuse to serve as constable, nor was he unable to serve, but that he actually did serve as constable three days after the date of Wood's appointment, and three months afterward. This evidence was objected to, but was admitted, and upon it the plaintiff had judgment, which on error to this court was reversed. The cause was argued in the supreme court by two of the most distinguished counsel in the state—the late lamented Daniel Cady, afterwards one of the justices of this court, and Abraham Van Vechten. It was insisted for the plaintiff in error that the appointment by the three justices was a judicial act, and being in a case in which they had jurisdiction, it was conclusive; that the act of the justices could only be corrected by a direct proceeding for that purpose; and that the common pleas had no right to decide upon the validity of the appointment. For the defendant in error it was insisted that the power given to the justices was special, and must be strictly pursued; that it could only be exercised in case an officer chosen should refuse to serve, and that it appeared in the case that Lawrence had not refused to serve; that the justices therefore had no authority or jurisdiction, and the appointment was void. The court made use of this language: "This appointment was a judicial act, for the justices must first determine and adjudge that there is a vacancy in the office, and that the town neglected to fill it. It is not traversable in such a collateral action. The appointment remains valid until it be set aside or quashed in the regular course, upon certiorari. It is certainly sufficient to justify the constable. He comes to the office by an appointment, regular according to the forms of law, and made by a tribunal having jurisdiction in the case; and he is bound to accept under a penalty. He is not to inquire at his peril into the validity of the act. It is sufficient that these justices have authority to make such an appointment in the given case." Although the defendant in that case was a ministerial officer, and the court say, "the appointment was clearly sufficient to justify the constable,” Colton v. Beardsley. yet the case is not decided upon the character of the officer, but upon that of the act by which he held his office. The court say the appointment was a judicial act. This term is used by way of accommodation. Perhaps it would have been as well to have said that the making of the appointment was in the nature of a judicial act, as it called for the exercise of judgment and discretion. The power was not exercised by the justices in their capacity of judges or as a court. (Rice v. Parkman, Parker, J., 16 Mass. R. 330.) It might have been delegated to a clerk of the court, had the legislature seen fit, and within fifteen days after the vacancy in the constable's office. It. was delegated to the inhabitants of the town. The power did not call for any decision between parties to an action; nor did it require the entry of any judgment upon the facts; but as it required the exercise of judgment and discretion and the determination and decision of a question of fact, the nature of the power was quasi judicial, and when exercised the decision was final, and conclusive until reversed in a direct proceeding for that purpose, and could not be questioned collaterally. (Van Wormer v. Mayor of Albany, 15 Wend. 262.) The effect is the same, upon whomsoever such a power is conferred, whether it be the president of the United States, justices of the peace, the inhabitants of a town or school district, or the trustees of a school district. The case of Wood v. Peake (supra) is cited with approval in Green v. Burke, (23 Wend. 502, 3,) by Cowen, J. He says, "though the place (constable's office) being full was a jurisdictional objection, yet the question was one on which the justices had power to pass judicially. There are many such cases." Applying this principle to the case before us, it is clear that the determination of the trustees that there was a vacancy in the office, and their act in calling a special meeting of the inhabitants of the district to fill the vacancy, and the act of the special meeting in filling it, were final and conclusive, and not to be questioned collaterally. I lay out of the case, entirely, the fact that the |