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
facto, and 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; this rule is well settled,
and is applicable to this case.
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
This was an application for leave to file a petition for a writ
of habeas corpus. The case is stated in the opinion.
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
Page 173 U. S. 453
the penitentiary at Fort Leavenworth, Kansas, 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
until 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
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
II 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
And it is further contended that the President could not, during
the recess of the Senate and without its concurrence,
Page 173 U. S. 454
by his commission invest an appointee with any portion of the
judicial power of the United States government, as defined in
Article III 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.
Page 173 U. S. 455
Griffin's Case, Chase's Decisions 364, 425, 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
Page 173 U. S. 456
facto, acting under color of office, though not
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
In re Burke, 76 Wis. 357;
Manning, 76 Wis. 365;
In re Manning, 139 U.
S. 504; Church on Habeas Corpus, §§ 256, 257, 269, and
McDowell v. United States, 159 U.
S. 596, 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 district judge in South Carolina was immaterial,
since he must be held to have been a judge
de facto, if
de jure, and his actions as such, so far as they
affected other persons, were not open to question.
Halsey, 16 Pet. 71,
41 U. S. 85-86;
Hussey v. Smith, 99 U. S. 20,
99 U. S. 24;
Norton v. Shelby County, 118 U. S. 425,
118 U. S. 445;
Ball v. United States, 140 U. S. 118,
140 U. S.
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.
* Note by Reporter -- The following historical facts have some
bearing on the constitutional questions which the Court was shut
out from considering.
On the 1st day of July, 1795, the Senate having on the 26th day
of the previous June "adjourned without day," the resignation by
Mr. Jay of the office of Chief Justice of the United States took
effect. President Washington wrote to Mr. Rutledge of South
"I directed the Secretary of State to make you an official offer
of this honorable appointment; to express to you my wish that it
may be convenient and agreeable to you to accept it; to intimate in
that case my desire, and the advantages that would attend your
being in this city the first Monday in August, at which time the
next session of the Supreme Court will commence; and to inform you
that your commission as Chief Justice will take date on this day,
July the 1st, when Mr. Jay's will cease, but that it would be
detained here, to be presented to you on your arrival."
In the third volume of Dallas, under the head of "August Term,
1795," it is said:
"A commission bearing date the 1st of July, 1795, was read, by
which, during the recess of Congress, John Rutledge, Esquire, was
appointed Chief Justice until the end of the next session of the
Two important cases are reported in that volume as decided at
this term. In the first,
United States v. Peters, the
decision is announced "by the Court." In the second,
Jansen, the Justices give their opinions
Chief Justice Rutledge closing and announcing the decree.
The Senate met on the 9th of December, 1795, and the nomination
of Mr. Rutledge "to be Chief Justice of the Supreme Court of the
United States, vice John Jay, resigned" was sent in on the 10th of
that month, and on the 15th of the same month, the Senate refused
to concur in it.
Rutledge's biographer says that the nomination was rejected
because "when the Senate met in December, his mind had become
diseased," but Jefferson, writing on the 31st of December, 1795,
"The rejection of Mr. Rutledge by the Senate is a bold thing,
because they cannot pretend any objection to him but his
disapprobation of the [Jay's] Treaty."
Busts of the deceased Chief Justices have been placed in the
Court room through appropriations made by Congress for the
The first appropriation was made March 2, 1831, "for employing
John Frazee to execute a bust of John Jay for the Supreme Court
room, four hundred dollars." Frazee then resided in New York.
The second, made June 30, 1834, authorized a contract to be
"with a suitable American artist for the execution, in marble,
and delivery in the room of the Supreme Court of the United States,
a bust of the late Chief Justice Ellsworth,"
and appropriated eight hundred dollars therefor. The bust was
made by H. Augur, then living in New Haven.
The third, made May 9, 1836, appropriated "for a marble bust of
the late Chief Justice Marshall, five hundred dollars." The bust
was executed by Hiram Powers, who lived in Washington from 1835 to
The fourth, made January 21, 1857, authorized the making of
"a contract with a suitable artist for the execution, in marble,
and delivery in the room of the Supreme Court of the United States,
a bust of the late Chief Justice John Rutledge, and appropriated
therefor eight hundred dollars."
The bust was made by A. Galt.
The fifth, made January 29, 1874, authorized the Joint Committee
on the Library "to procure and place in the room of the Supreme
Court busts of the late Chief Justice Roger Brooke Taney, and of
the late Salmon Portland Chase," and appropriated two thousand five
hundred dollars for the purpose. The bust of Taney is by Rinehart,
and that of Chase by Jones.
The latest appropriation, made March 2, 1889, was
"to procure and place in the room of the Supreme Court of the
United States a bust of the late Chief Justice, Morrison Remick
Waite, one thousand five hundred dollars."
The bust is by St. Gaudens of New York.
See also the Act of October 2, 1888, c. 1069, 25 Stat.
505, 547, appropriating for portraits of Rutledge, Ellsworth, and
Waite, to be hung "on the robing room of the Court with those of
the other Chief Justices already there."
Thus it appears that Washington appointed Rutledge Chief Justice
ad interim; that the other members of the Court acted with
him as such without objection; and that both Houses of Congress
have recognized him as one of the Chief Justices.