WARD, EX PARTE , 173 U.S. 452 (1899)

R. C. Garland and W. Wright, Jr., for petitioner.

Mr. Chief Justice FULLER delivered the opinion of the court.

Ward was tried and found guilty before Edward R. Meek, judge of the district court of the United States for the Northern district of Texas, for 'having in his possession counterfeit molds,' and was sentenced October 22, 1898, to [173 U.S. 452, 453]   the penitentiary at Ft. Leavenworth, Kan, at hard labor, for a period of one year and one day, and committed accordingly to the custody of the warden of said prison. He now makes application for leave to file a petition for habeas corpus on the ground that the sentence was void because Judge Meek was appointed July 13, 1898, after the adjournment of the previous session of the senate of the United States, and commissioned by the president to hold office u til the end of the next succeeding session of the senate, and that from the date of the appointment and commission until after the conviction and the sentence there was no session of the senate, though it is not denied that the appointment was afterwards confirmed.

By the act of February 9, 1898 (30 Stat. 240, c. 15), provision was made for an additional judge for the Northern judicial district of the state of Texas, to be appointed by the president, by and with the advice of the senate, and that, when a vacancy in the office of the existing district judge occurred, it should not be filled, so that thereafter there should be only one district judge. It is stated that Judge Rector was district judge of the Northern district of Texas when the statute was passed (February 9, 1898); that he died (April 9, 1898) before Judge Meek's appointment, and while the senate was still in session,-and argued that the appointment could not be treated as one to fill the vacancy caused by Judge Rector's death, because that was forbidden by the act, and must be regarded as an appointment to the office of 'additional district judge' created thereby. Clause 3 of section 2 of article 2 of the constitution provides that 'the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session,' but it is insisted that the office in this instance was created during a session of the senate, and that it could not be filled at all, save by the concurrent action of the president and the senate.

And it is further contended that the president could not during the recess of the senate, and without its concurrence, [173 U.S. 452, 454]   by his commission invest an appointee with any portion of the judicial power of the United States government, as defined in article 3 of the constitution, because that article requires that judges of the United States courts shall hold their offices during good behavior, and hence that no person can be appointed to such office for a less period, and authorized to exercise any portion of the judicial power of the United States, as therein defined.

We need not, however, consider the elaborate argument of counsel in this behalf, since we regard the well-settled rule applicable here, that where a court has jurisdiction of an offense and of the accused, and the proceedings are otherwise regular, a conviction is lawful, although the judge holding the court may be only an officer de facto, and that the validity of the title of such judge to the office, or his right to exercise the judicial functions, cannot be determined on a writ of habeas corpus. [173 U.S. 452, 455]   In Griffin's Case, Chase, 364, 425, Fed. Cas. No. 5,815, this was so ruled, and Mr. Chief Justice Chase said: 'This subject received the consideration of the judges of the supreme court at the last term, with reference to this and kindred cases in this district; and I am authorized to say that they unanimously concur in the opinion that a person convicted by a judge de [173 U.S. 452, 456]   facto, acting under color of office, though not de jure, and detained in custody in pursuance of his sentence, cannot be properly discharged upon habeas corpus.' And to that effect see Sheehan's Case, 122 Mass. 445; Fowler v. Bebee, 9 Mass. 235; People v. Bangs, 24 Ill. 187; In re Burke, 76 Wis. 357, 45 N. W. 24; In re Manning, 76 Wis. 365, 45 N. W. 26; Id., 139 U.S. 504 , 11 Sup. Ct. 624; Church, Hab. Corp. 256, 257, 369, and cases cited.

In McDowell v. U. S., 159 U.S. 596 , 16 Sup. Ct. 111, one of the circuit judges in the Fourth circuit designated the judge of one of the district courts in North Carolina to hold a term in South Carolina; and his power to act was challenged by an accused on his trial, and before sentence. The cause was carried to the court of appeals for that circuit, which certified questions to this court. We decided that whether existing statutes authorized the designation of the North Carolina district judge to act as distri t judge in South Carolina was immaterial, since he must be held to have been a judge de facto, if not de jure, and his actions as such, so far as they affected other persons, were not open to question. Cocke v. Halsey, 16 Pet. 71, 85, 86; Hussey v. Smith, 99 U.S. 20 , 24; Norton v. Shelby Co., 118 U.S. 425, 445 , 6 S. Sup. Ct. 1121; Ball v. U. S., 140 U.S. 118, 128 , 129 S., 11 Sup. Ct. 761.

The result of the authorities is that the title of a person acting with color of authority, even if he be not a good officer in point of law, cannot be collaterally attacked; and as Judge Meek acted, at least, under such color, we cannot enter on any discussion of propositions involving his title to the office he held.

Leave denied.