Ex parte Ward

CourtUnited States Supreme Court
Writing for the CourtFULLER
Citation19 S.Ct. 459,43 L.Ed. 765,173 U.S. 452
Decision Date20 March 1899
PartiesEx parte WARD

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 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.

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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

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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....

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68 practice notes
  • Baker v. State, No. 109
    • United States
    • Court of Appeals of Maryland
    • October 17, 2003
    ...by such orders until Judge Brawley arrived. Id. at 601-602, 16 S.Ct. at 113, 40 L.Ed. at 273-74. Along the same lines, in Ex Parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 833 A.2d 1077 (1899), a petitioner sought habeas corpus relief, challenging the authority of the judge that sente......
  • Anderson ex rel. Poe v. Gladden
    • United States
    • Supreme Court of Oregon
    • September 14, 1955
    ...discharged upon habeas corpus; the right of such judge to exercise judicial functions cannot be determined on such writ.' Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 See, also, State ex rel. Bales v. Bailey, 106 Minn. 138, 118 N.W. 676, 19 L.R.A.,N.S., 775 (habeas corpus); State......
  • National Ass'n of Greeting Card Publishers v. U.S. Postal Service, Nos. 75-1856
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 28, 1976
    ...composed, there is a separate and independent reason why the actions here challenged would still be valid. At least since Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899), the law has been clear A person actually performing the duties of an office under color of title is an of......
  • Roche v. Evaporated Milk Ass, No. 584
    • United States
    • United States Supreme Court
    • May 3, 1943
    ...104, 27 S.Ct. 25, 26, 51 L.Ed. 105; Harlan v. McGourin, 218 U.S. 442, 451, 31 S.Ct. 44, 48, 54 L.Ed. 1101, 21 Ann.Cas. 849; Ex parte Ward, 173 U.S. 452, 454, 19 S.Ct. 459, 460, 43 L.Ed. 765. Nor does this case involve a refusal by the district court to adjudicate issues properly presented t......
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72 cases
  • Andrade v. Lauer, No. 82-1880
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 16, 1984
    ...so far as the public or third parties who have an interest in them are concerned." Greeting Card, 569 F.2d at 579; see also Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899). The court went on to insist that "the remedy for improper composition is not invalidation of the Commis......
  • National Ass'n of Greeting Card Publishers v. U.S. Postal Service, Nos. 75-1856
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 28, 1976
    ...composed, there is a separate and independent reason why the actions here challenged would still be valid. At least since Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899), the law has been clear A person actually performing the duties of an office under color of title is an of......
  • Leary v. United States, No. 15290.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 30, 1959
    ...States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377; McDowell v. United States, 159 U. S. 596, 16 S.Ct. 111, 40 L.Ed. 271; Ex Parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765. * * * It is not wholly clear how far the conditions upon a judge\'s qualifications may be absent and his acts stil......
  • U.S. v. Woodley, No. 82-1028
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 14, 1985
    ...ultimately confirmed, it was not because he was a recess appointee, but because of his opposition to the Jay Treaty. See Ex parte Ward, 173 U.S. 452, 454 n. 1, 19 S.Ct. 459, 43 L.Ed. 765 6 These statistics were compiled from the files of the Office of the Deputy Attorney General at our requ......
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