This case comes to this court on questions certified by the court of appeals of the Fourth circuit. The facts, as stated, are that a vacancy existed in the office of district judge of the United States for the district of South Carolina, from January 1, 1894, to February 12, 1894. The regular terms of the district court for the Western district were fixed by law to be held at Greenville on the first Mondays of February and August (26 Stat. 71), and the first Monday of February, 1894, fell on the fifth day of the month. On January 30, 1894, the following order, made by Hon. Charles H. Simonton, one of the circuit judges of the circuit, was duly filed in the clerk's office: [159 U.S. 596, 597] 'It appearing to me by the certificate of the clerk, under the seal of the court, this day filed, that there is such an accumulation of business and urgency for thie transaction thereof in the district court for the Western district of this state, and that the public interests require the designation and appointment of a district judge within this circuit to hold the regular term of this court beginning on the first Monday of February, 1894, at Greenville, South Carolina:
In pursuance of this order, Judge Seymour held and presided over the regular term of the district court for that district from February 5th to February 12th, on which day Hon. William H. Brawley, appointed and duly commissioned as district judge, qualified and entered upon the discharge of his official duties, and held and presided at the term from that day until the conclusion of the proceedings in this case. On February 16th an indictment was returned into the court against A. F. McDowell, the plaintiff in error. Upon this indictment McDowell was tried February 21st and 22d, and a verdict of guilty returned. A motion for a new trial was overruled February 23d. Thereupon, and before sentence, McDowell made a motion in arrest of judgment, on the ground that the indictment had been found, and the subsequent proceedings had thereon, at what was an unlawful term of court, and that such indictment and subsequent proceedings were consequently void. This motion was overruled, and sentence pronounced upon the verdict. The making of the motion in arrest and its disposition appear in the record in a bill of exceptions, which refers to the indictment as found by 'the grand jury impaneled at the special February term of said [159 U.S. 596, 598] court, at Greenville, at the district aforesaid,' and the statement of the matter upon which the motion in arrest was founded commences: 'At the opening of the special February term, 1894, of said court, that being the term at which said indictment was found,'-but the record nowhere discloses the calling of any special term as such. Upon these facts the court of appeals certified these questions:
J. Altheus Johnson, for plaintiff in error.
Asst. Atty. Gen. Whitney, for the United States.
Mr. Justice BREWER, after stating the facts, delivered the opinion of the court.
The contentions of counsel for plaintiff in error are that the power of a circuit judge or justice to call one district judge from his own into another district does not extend to cases in which there is a vacancy in the office of judge of the latter district; that the order of the circuit judge designating and appointing Judge Seymour to hold the February term was void; that the term lapsed; that, no special term having been called, Judge Brawley was attempting to hold the district court at a time unauthorized by law; and that, therefore, all proceedings before him were coram non judice and void.
This obviously presents a mere matter of statutory construction, for the power of congress to provide that one district judge may temporarily discharge the duties of that office in another district cannot be doubted. It involves no trespass upon the executive power of appointment. There is no constitutional provision restricting the authority of a district judge to any particular territorial limits. District courts [159 U.S. 596, 599] are solely the caeation of statute, and the place in which a judge thereof may exercise jurisdiction is subject absolutely to the control of congress.
At first there was no authority for the temporary transfer of one judge to another district. The judiciary act of 1789, 6 (1 Stat. 76), simply provided that a district judge, if unable to attend at the day appointed for the holding of any term, might, by his written order, continue it to any designated time, and that in case of a vacancy all matters pending in the court should be continued as of course until the first regular term after the filling of the vacancy.
Since then there has been repeated legisalation, each successive statute seemingly intended to make larger provision for the regular and continued transaction of the business of the district court. Thus, in 1850 ( 9 Stat. 442; Rev. St. 591), an act was passed providing that when any district judge was prevented by any disability from holding any term, and that fact was made to appera by the certificate of the clerk, under the seal of the court, to the circuit judge, such judge might, if in his judgment the public interest so required, designate and appoint the judge of any other district in the circuit to hold such term, and to discharge all the judicial duties of the judge so disabled, during such disability. This, it will be noticed, applied only in case of disability on the part of the regular district judge. Two years thereafter, in an act (10 Stat. 5; carried into the Revised Statutes as section 592), like authority was given to call in the judge of some other district when, as shown by the certificate of the clerk, from the accumulation or urgency of business in any district court, the public interests so required. This statute contemplated the doubling of the judicial force, and authorized both judges, the regular and the appointed judge, to act separately in the discharge of all duties. Finally, in 1871, and act was passed (16 Stat. 494; Rev. St. 596) which reads as follows:
This gives full power to the circuit judge to act, without reference to any certificate from the clerk, whenever in his judgment the public interests require. It is contended that the words 'in the place or in aid of' limit the power of designation and appointment to those cases in which there is an existing district judge. This construction, it is claimed, finds support in section 602, Rev. St., which in substance re-enacts the latter part of section 6 of the judiciary act of 1789, to the effect that in case of a vacancy in the office of district judge all matters pending before the court shall be continued, of course, until the next stated term after the appointment and qualification of his successor. While 'in aid of' naturally imply some existing judge to be aided, the words 'in the place of' do not necessarily carry the same implication. Com. v. King, 8 Gray, 501. They may, without doing violence to language, be construed to mean that the designated judge is to take temporarily the place which is or has been filled by a regular judge.
Section 602 throws little light on the question. It does not purport to abolish the term. The existence of a term does not depend on the fact that any business is transacted thereat, nor does any general order of continuance of itself close the term. A simple illustration will demonstrate this. Suppose at the commencement of any regular term of this court a general order should be entered continuing all matters to the succeeding term; no one would contend that such an order of itself adjourned the term, or prevented the court from adjourning from day to day until such time as it saw fit to order a final adjournment. The officers attending after the continuance of the cases, and until the final order of adjournment, would unquestionably receive their per diems for attendance upon a term of the court. The declaration that the process, etc., [159 U.S. 596, 601] shall be 'continued, of course,' means simply continued without any special order, and was obviously designed to prevent that failure of right which in many cases might otherwise result from the absence of a judge. It is familiar that process is often made returnable at a term, and notices are given of applications for orders at a term. In these and similar cases rights are created which may depend for their continued existence upon some action of the court at the term. Clearly, the statute does not destroy or even temporarily suspend the jurisdiction of the regular judge, when appointed, over matters pending in his court.
But, whatever doubts may exist whether the order of designation by the circuit judge was within his power, there is another consideration which is decisive of this case, Judge Seymour must be held to have been a judge de facto, if not a judge de jure, and his actions as such, so far as they affect third persons, are not open to question. Ball v. U. S., 140 U.S. 118, 129 , 11 S. Sup. Ct. 761; Norton v. Shelby Co., 118 U.S. 425 , 6 Sup. Ct. 1121; Hunter v. Ferguson, 13 Kan. 462. The time and place of a regular term of the district court were fixed by law at Greenville, on the first Monday of February. Judge Seymour was a judge of the United States district court, having all the powers attached to such office. He appeared at the time and place fixed by law for the regular term, and actually held that term. The circuit judge had, generally speaking, the power of designating the judge of some other district to do the work of the district judge in this district. The order of designation was regular in form, and there was nothing on its face to suggest that there was any vacancy in the office of district judge for the district of South Carolina. Any defect in the order, if defect there was, is shown only by matters dehors the record. While this may not be conclusive, it strongly sustains the contention of the government that Judge Seymour was, while holding that term, at least a judge de facto. Whatever doubt there may be as to the power of designation attaching in this particular emergency, the fact is that Judge Seymour was acting by virtue of an appointment regular on its face, and the rule is [159 U.S. 596, 602] well settled that where there is an office to be filled, and one, acting under color of authority, fills the office and discharges its duties, his actions are those of an officer de facto, and binding upon the public. Of course, if he was judge de facto, his orders of the continuance of the term from day to day until February 12th, when the regular judge took his place upon the bench, were orders which cannot be questioned, and the term was kept alive by such orders until Judge Brawley arrived. The record shows that the indictment was not found until after the latter was on the bench. Whether the grand jury was in fact impaneled or called before Judge Brawley took his seat, does not appear from the record. While section 817, Rev. St. U. S., provides that ordinarily jurors shall, for this district, be drawn at a preceding term, yet such provision does not conflict with the power granted in section 810 to all circuit and district courts, as follows: 'And either of the said courts may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so.' Under this provision the judge may at any term, regular or special, and at any time in the term, summon a grand jury.
Indeed, we may assume that all the proceedings in respect to this case were held before the regular judge of that court, and that the only orders which Judge Seymour made bearing upon this case are the daily orders of continuance of the court, and the keeping alive of the term from February 5th to February 12th, and these were orders made by a de facto judge of that court, and are, as we have stated, not open to challenge. The fact that in the recital of the proceedings the term is spoken of as a special term is immaterial, in the face of the statement that the regular term was opened on February 5th and continued from day to day until after the proceedings complained of had taken place. It follows from these considerations that the first question certified to this court must be answered in the affirmative. In view of this answer it is unnecessary to consider the second question.
The case will therefore be sent back to the court of appeals with an answer to the first question as above set forth.