Keith v. State

• Decision Date: 29 October 1887
• Citation: 5 S.W. 880
• Parties: KEITH <I>v.</I> STATE.
• Court: Arkansas Supreme Court

Page 880

5 S.W. 880

KEITH

v. STATE.

Supreme Court of Arkansas.

October 29, 1887.

Appeal from circuit court, Boone county; R. H. POWELL, Judge.

O. W. Watkins, for appellant. D. W. Jones, Atty. Gen., for appellee.

COCKRILL, C. J.

The appellant does not deny the jurisdiction of the Boone circuit court, but seeks to vacate the judgment of conviction upon the ground that the judge who presided over the court at the term when he was convicted was not the legally constituted judge of the court. He undertook to raise the question by objecting to the passing of sentence upon him, and by motion in arrest of judgment. But the facts disclosed by the objections which he caused to be spread upon the record, as well as our judicial knowledge of the legislation bearing upon the question, show that Judge POWELL, if not the judge de jure, is the judge de facto, of the circuit in which the appellant was convicted. The judgment of the court is not therefore subject to attack, and the question of the validity of the act of March 3, 1887, argued by counsel is not presented for consideration. The principle that the acts of an officer de facto are binding upon the public as though done by one in office de jure, and that his right to the office cannot be questioned except in a direct proceeding to which he is a party, is well settled, and is not new in this court. Pierce v. Edington, 38 Ark. 150; Kaufman v. Stone's Adm'r, 25 Ark. 336; Caldwell v. Bell, 3 Ark. 419, and 6 Ark. 227; Hildreth's Heirs v. McIntire's Devisees, 19 Amer. Dec. 61, and note.

The case of Rives v. Pettit, 4 Ark. 582, is more nearly analogous than any other in our reports. There a circuit judge presided in a court outside of his circuit under the supposed authority of an act of the legislature, permitting an exchange of circuits between judges, which turned out to be unconstitutional. Upon an appeal from a judgment rendered by the court thus organized, it was ruled that the proceedings were binding upon the parties, and the judgment was affirmed. It was intimated in that case that the ruling might have been different if the parties had not voluntarily submitted to the jurisdiction; but, as consent cannot confer jurisdiction, (Dansby v. Beard, 39 Ark. 254; Gaither v. Wasson, 42 Ark. 126,) and the facts were all apparent to the court, we fail to appreciate the force of the suggestion. The court went further in that case than we are called upon to go in this, inasmuch as there was a judge de jure in office whose duty it was to hold the court the proceedings of which were questioned; while here, if the Fourteenth judicial circuit has a legal existence, as counsel for the appellant admits, and Judge POWELL, who is exercising the functions of that office under legislative sanction, is not the judge de jure, there is no such judge. But the doctrine of Rives v. Pettit is sustained by well-considered cases.

In the case of Clark v. Com., 29 Pa. St. 129, the question presented in this case arose. The legislature had enacted that the county of Montour should be transferred from one judicial district to another, during the term for which the judge of the latter district had been elected, and the prisoner was convicted of murder in Montour county, after a trial before the judge of the district to which that county had been transferred. It was objected on behalf of the prisoner there, as in this case, that the act of the legislature was equivalent to an appointment of a judge for that county without an election, and was therefore, under the constitution of Pennsylvania, void. What the court says in reply to this argument is so pertinent that we quote it as applicable to this case, viz.: "A very important question upon the constitutional power of the legislature so to alter judicial districts as to transfer a judge to the courts of certain counties, who was never voted for in those counties, was intended to be raised by this plea. But, unfortunately for the prisoner, it cannot be raised in this form. His plea admits that Judge JORDAN [before whom the trial was had] is a judge de facto; and, if it did not admit this, we would take judicial notice of the legislation which placed him in the courts of Montour county, so far as to hold him to be a judge de facto. That legislation is at least a colorable title to his office. Can the right and power of a judge de facto, with color of title, be questioned in any other form than by quo warranto, at the suit of the commonwealth? Assuredly not. That a private relator could not test the validity of a judicial commission, even by quo warranto, was decided in Burrell's Case, 7 Pa. St. 34; and the principle has been applied in a variety of other cases. See Butler v. Delaplaine, 7 Serg. & R. 383; Keyser v. McKissan, 2 Rawle, 139; Turnpike Road Co. v. McConaby, 16 Serg. & R. 144; Kingsbury v. Ledyard, 2 Watts & S. 37; Murphy v. Bank, 20 Pa. St. 415; Com. v. Insurance Co., 5 Mass. 230; Canal Co. v. Railroad Co., 4 Gill & J. 1; King v. Ogden, 10 Barn. & C. 230; Queen v. Taylor, 11 Adol. & E. 949. But if a private suitor may not, by the appropriate process, question a judge's commission, when he (the judge) has a chance to be heard in defense of his right, much less may such a suitor do it collaterally, in an action to which the judge is not a party, and where he cannot be heard by himself or counsel. If this defendant may plead to the jurisdiction of the judge, every defendant in Montour county, whether in civil or criminal proceedings, may do the same; and Judge JORDAN, instead of trying the rights of parties, will be continually engaged in defending his own. Not merely in defending them, but in adjudicating them, contrary to that law, which is too elementary even for the bill of rights, that forbids a man to judge his own cause. He is a judge de facto, and, as against all parties but the commonwealth, he is a judge de jure also. If the legislation complained of is to be tested, it must be at the instance of the attorney general, or of some public officer representing the sovereignty of the state." See, too, Com. v. McCombs, 56 Pa. St. 436.

The same principle was announced by GRAY, C. J., for the supreme court of Massachusetts, in Com. v. Taber, 123 Mass. 253, which was the case of an appeal from a judgment of conviction; and in Sheehan's Case, 122 Mass. 445, where the question arose on application for habeas corpus. The court of errors of New York have maintained the same doctrine in a case where the judgment appealed from was rendered by a court presided over by judges who were sitting under the supposed authority of unconstitutional legislation. People v. White, 24 Wend. 520. The question has undergone an elaborate investigation in the supreme court of Connecticut, and a similar conclusion was reached. State v. Carroll, 38 Conn. 449. See, too, Milward v. Thatcher, 2 Term R. 81, 87; Mallett v. Mining Co., 1 Nev. 156; Ex parte Strange, 21 Ohio St. 610; Ex parte Johnson, 15 Nev. 512; In re Whiting, 2 Barb. 513; People v. Bangs, 24 Ill. 184.

It would be inconsistent with a well-settled principle to undertake to determine Judge POWELL'S right to exercise the functions of this office in a proceeding to which he is not a party.

The cases of Dansby v. Beard, 39 Ark. 254; Gaither v. Wasson, 42 Ark. 126; and Hyllis v. State, 45 Ark. 478,—are not inconsistent with this doctrine. The first and second cases were efforts to confer judicial power by the...