Page:Federal Reporter, 1st Series, Volume 5.djvu/913

 vu EB AH LEE. 901 �tices of the supreme court, who should take office on the first Monday in July thereafter; and also a circuit judge in each of the judicial districts of the state, who should take office at the same date. By section 10 of the act it was further pro- vided that, "within 20 days after the taking effect of this act, the governor shall appoint three judges of the supreme court and iive judges of the circuit courts, who shall, within 10 days after receiving notice of their appointments, qualify and enter upon the duties of their offices until their successors are elected and qualified, as provided in this act ; " that the gov- ernor appointed certain persons to be judges of the supreme and circuit courts accordingly, who entered upon these re- spective offices and thereby displaced the five justices of the supreme and circuit courts then in office; and that each of the judges before whom the action against the petitioner was heard and tried, entered and held office under and by virtue of an appointment under said section 10, and not otherwise ; and the contention of the petitioner is that this act is uncon- stitutional, and the appointments thereunder illegal and void, and therefore the petitioner is in custody without due process oflaw. �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 Eevised Stat- ntes, which provide for the issuing of the writ of habeaS corpus by the courts and judges of the United States. Thô 753d section of the Eevised Statutea provides that, among other cases, the writ may "extend to a prisoner" who "is in custody in violation of the constitxition, 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 ihe original constitution, is the supreme law of the land, and therefore, within the limit of its operation, the national govem- ment is superior to that of the state. Section 5 of the amend- ment 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," ����