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Ex Parte Ward, 173 U.S. 452 (1898)
Ex Parte Ward, 173 U.S. 452 (1898)
452
19 S.Ct. 459
43 L.Ed. 765
[454]
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.
[455]
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
[456]
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.
357, 45 N. W. 24; In re Manning, 76 Wis. 365, 45 N. W. 26; Id., 139 U. S.
504, 11 Sup. Ct. 624; Church, Hab. Corp. 256, 257, 369, and cases
cited. In McDowell v. U. S., 159 U. S. 596, 16 Sup. Ct. 111, 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
railway company, and all persons claiming under it, be barred and
foreclosed from setting up any claim or equity therein thereafter; and that
plaintiff have judgment over for any deficiency on the sale. The defendant
the railway company answered. A demurrer was sustained to its answer,
and a decree was entered against the parties to the note for the amount due
thereon, and for the sale of the premises mortgaged, with judgment against
them for any deficiency, and also for the distribution of any surplus that
might remain after the application on the mortgage of the proceeds from
the sale.
The case was carried on appeal to the circuit court of appeals for the Ninth
circuit, and the decree below was by that court affirmed. 48 U. S. App.
273, 24 C. C. A. 482, and 79 Fed. 196. And from its decree this appeal
was allowed.
Frederick Bausman, for appellant.
J. W. Blackburn, Jr., and George E. Hamilton, for appellee.
Mr. Chief Justice FULLER, after stating the facts in the fore oing
language, delivered the opinion of the court.
Although the record does not contain the original bill, it is apparent that the
jurisdiction of the circuit court was invoked on the ground of diverse
citizenship, and that the interest of appellants in the mortgaged premises was
acquired after the commencement of the action.
But it is said because plaintiff saw fit to set forth the manner in which appellant
obtained its interest, and it appeared that appellant claimed under a conveyance
from the purchasers at a sale made pursuant to a decree of the circuit court, the
jurisdiction was not entirely dependent on the citizenship of the parties. The
averments, however, in respect to the acquisition of its interest by appellant,
were no part of plaintiff's case; and, if there had been no allegation of diverse
citizenship the bill unquestionably could not have been retained. The mere
reference to the sale and foreclosure could not have been laid hold of to
maintain jurisdiction on the theory that plaintiff's cause of action was based on
some right derived from the constitution or laws of the United States.
It is thoroughly settled that under the act of August 13, 1888, the circuit court
of the United States has no jurisdiction, either original or by removal from a
state court, of a suit as one arising under the constitution, laws, or treaties of the
United States, unless that appears by the plaintiff's statement to be a necessary
part of his claim. Tennessee v. Union & Planters' Bank, 152 U. S. 454, 14 Sup.
Ct. 654; Metcalf v. Watertown, 128 U. S. 586, 589, 9 Sup. Ct. 173; Mining Co.
v. Turck, 150 U. S. 138, 14 Sup. Ct. 35. If it does not appear at the outset that
the suit is one of which the circuit court, at the time its jurisdiction is invoked,
could properly take cognizance, the suit must be dismissed; and lack of
jurisdiction cannot be supplied by anything set up by way of defense. And so,
when jurisdiction originally depends on diverse citizenship, the decree of the
circuit court of appeals is final, though another ground of jurisdiction may be
developed in the course of the proceedings. Ex parte Jones, 164 U. S. 691, 17
Sup. Ct. 222.
Appeal dismissed.