There being a vacancy in the office of District Judge for the
District of South Carolina from January 1, 1894, to February 12,
1894, and the term of that court for the Western District being
fixed by law for the fifth day of February, 1894, one of the
circuit judges of the circuit designated and appointed a judge of
one of the district courts in North Carolina within the same
circuit to hold and preside over that term. Court was so held and
adjourned from day to day. February 12, a commissioned Judge
appeared. Plaintiff in error was tried upon an indictment returned
against him, found guilty, and sentenced.
Held:
(1)That it is within the power of Congress to provide that one
district judge may temporarily discharge the duties of that office
in another district.
(2) That whether existing statutes authorized the appointment of
the North Carolina district judge to act as district judge in South
Carolina is immaterial, as,
(3) He must be held to have been a judge
de facto, if
not
de jure, and his actions, as such, so far as they
affect third persons, are not open to question.
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 are binding
on the public.
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, Act of April 26, 1890,
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:
Page 159 U. S. 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 the 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:"
"Now therefore in consideration of the premises and on motion of
the United States attorney, I do hereby designate and appoint the
Honorable Augustus S. Seymour, Judge of the District Court of the
United States for the Eastern District of North Carolina, the same
being in the Fourth Circuit, to hold and preside over the said term
of court and to have and to exercise within the Western District of
South Carolina the same powers that are vested in the judge of the
said district."
In pursuance of this order, Judge Seymour held and presided over
the regular term of the district court for that district from
February 5 to February 12, 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 16, an indictment was
returned into the court against A. F. McDowell, the plaintiff in
error. Upon this indictment McDowell was tried February 21 and 22
and a verdict of guilty returned. A motion for a new trial was
overruled February 2. 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
Page 159 U. S. 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:
"1. Whether plaintiff in error was indicted, convicted, and
sentenced at a lawful term of the District Court for the District
of South Carolina, and the Western District thereof, sitting at
Greenville, as set forth in this certificate."
"2. Whether the question as to the validity of the indictment
and proceedings against plaintiff in error was open to
consideration on the motion in arrest of judgment."
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
Page 159 U. S. 599
are solely the creation 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 legislation, 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.Stat. § 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 appear
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 § 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.Stat. § 596, which reads as follows:
"It shall be the duty of every circuit judge, whenever in his
judgment the public interest so requires, to designate and appoint,
in the manner and with the powers provided in section 591, the
district judge of any judicial district within his circuit
Page 159 U. S. 600
to hold a district or circuit court in the place or in aid of
any other district judge within the same circuit, and it shall be
the duty of the district judge so designated and appointed to hold
the district or circuit [court] as aforesaid, without any other
compensation than his regular salary as established by law, except
in the case provided in the next section."
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.Stat., which in substance reenacts 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.
Commonwealth 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.,
Page 159 U. S. 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. United States,
140 U. S. 118,
140 U. S. 129;
Norton v. Shelby County, 118 U. S. 425;
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
Page 159 U. S. 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 § 817, Rev.Stat., 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 5 to February 12, 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 5 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.
