5 F. 899 | D. Or. | 1880
. This is a petition for a writ of habeas corpus directed to* the sheriff of this county commanding him to produce .the body of the petitioner, Ah Lee, before this court, together with the cause of his detention. Substantially the petition states that the petitioner is a citizen of the empire of China; that he has been indicted and convicted of the crime of murder in the circuit court for the county of Multnomah and state of Oregon, alleged to have been committed in the killing of one Chung Su Ging about October 3, 1878, in a joss house in this city, the judgment of which court was after-wards affirmed hy the supreme court of the state; that after-wards said circuit court, in pursuance of a mandate from said supreme court, appointed April 20, 1880, as the day on which the judgment aforesaid should be executed by hanging the petitioner; that neither the person who acted as judge of said circuit court during the pendency of said proceeding, nor those who acted as judges of said supreme court during the same, were ever appointed or elected judges of said courts, or any of them, in pursuance of any law or authority of the state of Oregon; that neither they, nor any of them, had any power or authority to act as such judges during the pendency of said proceeding, or at all, and that therefore said proceeding and the judgment therein were carried on and had without due process of law, within the meaning of article 11 of the amendments of the constitution of the United States, and are therefore void and of no effect; that the sheriff of said county now unlawfully restrains the petitioner of his liberty in pursuance of said void and pretended judgment, and also threatens and intends to deprive him of his life, as therein provided and directed. Besides these allegations contained in the petition, it was assumed and understood upon the argument that the following facts were judicially known to the court: That on October 17, 1878, the legislature of this state passed an act entitled “An act to provide for the election of supreme and circuit judges in distinct classes,” (Sess. Laws 1878, p. 33,) by which it was provided that at the general election in June, 1880, there should be elected three jus
The petition is based upon the clause of section 1 of the fourteenth amendment which reads: “Nor shall any state deprive any person of life, liberty, or property without due process of law;” and sections 751-755 of the Revised Statutes, which provide for the issuing of the writ of habeas corpus by the courts and judges of the United States. The 753d section of the Revised Statutes provides that, among other cases, the writ may “extend to a prisoner” who “is in custody in violation of the constitution, or of a law or treaty of the United States,” whether under color of the authority of the United States or a state thereof. This amendment, like the original constitution, is the supreme law of the land, and therefore, within the limit of its operation, the national government is superior to that of the state. Section 5 of the amendment gives congress express power to enforce the provisions thereof. In relation to the limitation upon the power of the state to “deprive any person of life, liberty, or property,”
Argument cannot make the case plainer than the mere statement of it. The conclusion necessarily follows from the premise. The state can only act through individuals, and when it does so their acts are the acts of the state.' As was said by Mr. Justice Strong, in delivering the opinion of the court in Ex parte Coles, at the present term of the supreme court: “We have said that the prohibitions of the fourteenth amendment are addressed to the states. They are: ‘ No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any-person within its jurisdiction the equal protection of the laws.’ They have reference to the actions of the political body denominated a state, by whatever instruments or in whatever modes that action may be taken. A state acts by its legislature, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exercised, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever by virtue of public position under a state government deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition, and as he acts in the name and for the
And again, in speaking of the power of congress to enforce these prohibitions, and the supposed want of it in regard to the injunctions addressed to the states in the original constitution, as was said in Kentucky v. Dennison, 24 How. 66, ho says: “But the constitution now expressly gives authority for congressional interference and compulsion in the cases embraced within the fourteenth amendment. It is but a limited authority, true, extending only to a single class of cases, but within its limits it is complete.” In re Parrott, U. S. C. C. Dist. of Cal., Sawyer and Hoffman, JJ.,
t It is admitted that the state has the power to deprive persons of life, liberty, and property, provided it is not done without due process of law. The power to do this, so far as it ever existed, is denied to and in effect taken away from the state by the fourteenth amendment. And this is not all. In case the state does so deprive any one, or attempts to, power is conferred upon the general government to interfere and prevent or correct the wrong. It is worse than idle to talk about the right of a state to do what the constitution prohibits it from doing, or the want of right in the United States to do what the constitution expressly authorizes it to do. The constitution, and not the local convenience, passion, or interest, is the standard and measure of the relative right and power of a state and the United States in our form of government. This fourteenth amendment was made a part of the constitution by the ratification of the states, including Oregon, and
The clause now under consideration only forbids a state to act towards individuals in disregard of what are generally deemed fundamental principles. So far, ihen, it is a bulwark against local tyranny and opression, and therefore ought to be considered and enforced as a provision intended and calculated to maintain and promote right and justice between the state and its inhabitants.
Article 7 of the constitution of the state provides substantially as follows: The judicial power shall be vested in a supreme, circuit, and county courts. Section 1. • The supreme court shall consist of four justices, “to be chosen in districts by the electors thereof,” but the number may be increased to seven. Section 2. Yacancies in this office must be filled by election, but the governor may fill a vacancy until the next election. Section i. The supreme court shall have only appellate jurisdiction, and shall hold a term at the seat of government annually. Sections 6, 7. The circuit court shall be held in each county by one of the justices 'of the supreme court, and shall have all judicial power not otherwise vested. Sections 8,9. Section 10 provides: “When the white population of the state shall amount to 200,000, the legislative assembly may provide for the election of supreme and circuit judges in distinct classes, one of which classes shall consist of three justices of the supreme court, who shall not perform circuit duty, and the other shall consist of the necessary number of circuit judges, who shall hold full terms without allotment, and who shall take the same oath as the supreme judges.”
The petitioner claims that the act under which the persons who were appointed judges of the court in which his case was tried and heard was unconstitutional and void, because: (1) The act does not declare or find that there was 200,000 population in the state when it was passed, nor was there any census, election return, or other record or public writing, or record tending to establish that fact, but the contrary; (2) that the provision of the constitution authorizing the legisla
Chancellor Kent, in his Commentaries, (vol. 1, p. 612,) says: “The better and larger definition of due process of law is that it means law in its regular course of administration through courts of justice.”
Since the adoption of the fourteenth amendment two cases have been before the supreme court of the United States involving this question.
The first was Kennard v. Louisiana, 92 U. S. 481. There was a contest between Kennard and Morgan for a state judge
The second was Pennoyer v. Neff, 95 U. S. 723. This ease went up from this court, and the question was as to the validity of a personal judgment given against a non-resident of the state, in a court of the state, without any service of the summons except by publication. In delivering the opinion of the court, Mr. Justice Field said: “Since the adoption of the fourteenth amendment to the federal constitution the validity of such judgments may be directly questioned, and their enforcement in the state resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties, over whom that court has no jurisdiction, do not constitute due process of law. Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied
In considering this case I have not found it necessary to pass upon the constitutionality of the act of October 17,1878, or the validity of the appointments thereunder; for although the act maybe unconstitutional, and the appointments illegal, still if the persons appointed were judges de facto, their acts, as to third persons, are valid, and the petitioner is not restrained without due process of law. From the provisions of the constitution above cited it plainly appears that the supreme and circuit courts of the state are created by the constitution. They exist by virtue of its provisions. As therein provided, the judges of the former are the judges of the latter, until the legislature, in the exercise of the power conferred upon it by section 10, art. 7, provides for the election of distinct judges for the latter. The persons appointed as judges under this act, although its unconstitutionality be admitted, and that therefore they are not j udges de jure or of right, are, nevertheless, acting as judges of constitutionally created and existing courts, having jurisdiction to try, hear, and determine the criminal action in which the petitioner has been convicted of murder, and sentenced to receive the punishment of death when and as it took place, both in the court below and upon appeal. A person actually in office by color of right or title—not a mere usurper or intruder—although not legally appointed or elected thereto, or qualified to hold the same, is still an officer de facto, or in fact, and, as a matter of public convenience and utility, bis acts, while so in office, are held valid and binding as to third persons.
But counsel for the petitioner contend: (1) That, no one is
In the first of these cases the court held that the constitution of the state having made the office of tax collector elective, the legislature had no power to provide for its being filled by appointment, nor to confer the duties thereof upon an office filled by appointment. But there the question arose in a direct proceeding to try the right to an office, while here it arises in a collateral one to determine the legality of an act. done by a person while in office. Upon the question of the power of the governor to appoint a judge, when the constitution only provides for his election, it is in point. But it has no bearing upon the question whether a person so appointed is a judge de facto or not.
The second case is a direct authority for the proposition that “an officer de facto is one who acts under color of title, which color can only be given by power having authority to fill the office;” in other words, that an appointment to an ■elective office does not give color of title to the appointee, and vice versa. The opinion is plausible; but no authorities are ■cited, and, so far as appears, the distinction attempted to be made by it is not found in the books. The case was decided in the county court, and the opinion delivered by the ccunty
As to the third point, it is sufficient to say that the constitution in effect creates a circuit court in each county, to be held by a justice of the supreme court or a circuit judge, as the case may be, and such court is the office of the judge who holds it. A circuit judge’s office is the circuit court in which he sits—the place which he fills—and such is the place or office filled by the person who acted as judge upon the trial of the petitioner.
The first and second points cover the general question, what constitutes a person an officer de facto ? In The King v. The Corporation of the Bedford Level, 6 East, 356, Lord Ellenborough, citing 1 Lord Raymond, 660, said: “An officer de facto is one who has the reputation of being the officer he assumes to-be, and yet is not a good officer in point of law.”
In this case it was held that a deputy registrar who continued to perform the duties of registrar after the death of his principal was not registrar de facto, because he entered only as deputy and could not, therefore, acquire the reputation of registrar. '
In Wilcox v. Smith, 5 Wend. 232, it -was held that a person who had acted as justice of the peace for three years, with the reputation of being such justice, was presumably in office under color of an election, and therefore an officer de facto, although there was no direct evidence that he entered the office under color of an election. In delivering the opinion of the court, Sutherland, J., said: “The principle is well settled that the acts of officers de facto are as. valid and effectual,
In People v. White, 24 Wend. 539, Mr. Chancellor Walworth said: “An officer de facto is one who comes into a legal and constitutional office by color of a legal appointment or election to that office; and, as the duties of the office must be discharged by some one for the benefit of the public, the law does not require third persons, at their peril, to ascertain whether such officer has been properly elected or appointed before they submit themselves to his authority, or call upon him to perform official acts which it is necessary should be performed. -Thus, for instance, the constitution requires that the justices, of the supreme court shall be appointed by the governor, with the advice and consent of the senate; but if, either intentionally or from inadvertence, the governor 'should appoint and commission an individual as one of the justices of that court without having previously nominated him to the senate and obtained the consent of that body, and the person thus appointed should take upon himself the duties of that office, he would be a judge of the supreme
To the same effect are the cases of People v. Collins, 7 John. 549; McInstry v. Tanner, 9 John. 135. In the latter, a person in the office of justice of the peace was held to be an officer de facto, although he was a minister of the gospel, and therefore constitutionally ineligible.
In Mallet v. Uncle Sam, etc., 1 Nev. 188, it was held that a person acting as justice of the peace under an appointment by selectmen, who had no authority to make sucli appointment, and a commission from the governor, who was authorized to issue commissions to such officers, was a justice de facto.
In February, 1812, the legislature of Massachusetts created the county of Hampden, and provided that the act should not take effect until August. In the meantime the governor of the state assumed to appoint the officers for the new county, as he was authorized to do after the law took effect. The matter came before the court, and it was held that the appointments were void as being made without law, but that the appointees, while in office, were officers de facto, and their acts valid. See Fowler v. Beleu, 9 Mass. 231; Commonwealth v. Fowler, 10 Mass. 290.
In Plymouth v. Painter, 71 Conn. 587, it was held that “an officer defacto is one who executes the duties of an office under color of an appointment or election to that office. He differs on the one hand from a mere usurper of an office, who undertakes to act as an officer without any color of right, and
In Brown v. O’Connell, 36 Conn. 451, an officer defacto was defined to be “one who has the color of right or title to, the office he exercises,—one who has the apparent title of an officer de jure;” and in Brown v. Lunt, 37 Maine, 428, as “one who actually performs the duty of an office with apparent right, and under claim and color of an appointment or an election.”
Ex parte Strang, 21 Ohio St. 610, is a case directly in point, and decides expressly what some of the foregoing cases do by necessary implication, that an unconstitutional act will give color of right to an appointment made under it. The case was this: A statute authorized the mayor of Cincinnati, in the absence or disability of the police judge, to appoint a temporary substitute. In pursuance of this authority the mayor made such an appointment, who, in the discharge of the duties of the, office, committed Strang to prison for the non-payment of a fine. The prisoner sued out a habeas corpus, and on the argument it was claimed in his behalf that the statute was contrary to the constitution and void. The court held that, admitting the act to be void, yet the appointee of the mayor was a judge de facto, saying: “The' direct question in this case is whether the reputed or color-able authority required to constitute an officer defacto can be derived from an unconstitutional statute. The claim that it cannot seems to be based upon the idea that such authority can only emanate from a person or body legally competent to invest 'the officer with a good title to the office. We do not understand the principle to be so limited. We find no authorities maintaining such limitation, while we find a number holding the contrary. 9 Mass. 231; 10 Mass. 290. The true doctrine seems to be, that it is sufficient if the officer holds,the office under some power having color of authority to-appoint; and that a statute, though it should, be found repugnant to the constitution, will give such color.”. In support of this conclusion the court cites Taylor v. Skrine, 3 Brevard, 516; Brown v. O’Connell, 36 Conn. 432; The State v. Messmore,
No decision of the supreme court of. this state upon the question has been cited, and I am not advised that any exists.
Tims it will be seen that the almost unbroken current of authority is against the claim made for the petitioner, that no one can be an officer defacto under a void law or an illegal appointment; and, admitting that the judges who tried and heard the action against the petitioner in the state courts were appointed judges of those courts under an unconstitutional act, yet they were at the least such judges under color of right and authority, and therefore they were and are judges de facto, and their acts are valid and binding as to third persons.
Color of title to an office is analogous to color of title to land. The latter does not mean a good title, or even a defective conveyance from one having title, but only the appearance of title; that is, a deed to the premises in due form of law. Stark v. Starr, 1 Sawy. 20.
In conclusion, it appearing that the petitioner has been convicted of the offence charged against him in a court having jurisdiction of the subject-matter and the person, held by at least a de facto judge, be is not, so far as this court can inquire, restrained of his liberty or adjudged to lose his life without due process of law, and therefore the petition for the writ is denied.
Reported In 1 Fed. Rep. 481.