Page:Federal Reporter, 1st Series, Volume 5.djvu/919

 IN RE AH LeB. ■fi'Ot �to judicial proceedingë; They thenmean a coiirse ef le^eà proceiedings according io those rules aiid principles which have been establîehed in Our jurisprudence for the protection and enforcement of private rights. To gbf'e Buch proceedings any validity, there must be a tribunal competent by its teon- stitution — that is, by the law of its creation — to pass upon the subject-matter of the suit; and, if that involves mereîy à determination of the persoiiiil liability of the defendant, he must be brought witliin its jurisdiction by service of process within the state, ôr his voluntary appearance." �In considering this case I have not found it necessary to pass upon the constitutionality'Of the act of October 17, 1878, or the validity of the appointments thereunder; for although the act may be unconstitutional, and the appointments illegal^ still if the personB appointed -were judges de facto, their aets, as to third persons, are valid, ànd the petitioner is not re- strained without due process of law. From the provisions of the constitution above cited it plainly appears that the su- preme and circuit courts of the state are created by the con- stitution. They exist by virtue of its provisions. As thereiti proyided, the judges of the former are the judges of: the latteï, until the legislature, in the exercise of the power conferred upon it by section 10, art. 7, provides for the election of dis- tinct judges for the latter. The perdons appointed as judgeë under this act, although its uncbnstitutionality be admitted, and that therefore they are not judges de jure or of right, arô, nevertheless, acting as judges of constitutionally created and existing courts jhaving jurisdiction to try, hear, and deter- mine the criminal action in which the petitioijer has been convicted of murder, and sentenced to receive the punishnient of death when and as it took place, both in the court below and upon appeaL A person ootually in office by color of right or title— not a mere usurper or intruder^ — although not legally appointed or elected thereto, or qualified to hold the same, is still an officer de /aeto, or in f act, and, as a matter of public convenience and utility, his acts, -while so in office, are held valid and binding as to third persons. �But coansel for the petitioner contend : (1) That no one is ����