Ex parte Ward

• Decision Date: 20 March 1899
• Citation: 19 S.Ct. 459,43 L.Ed. 765,173 U.S. 452
• Parties: Ex parte WARD
• Court: U.S. Supreme Court

173 U.S. 452 19 S.Ct. 459 43 L.Ed. 765 Ex parte WARD. March 20, 1899. R. C. Garland and W. Wright, Jr., for petitioner. djQ 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

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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,

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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 ...