whether under the federal or state authority, withdraws the property from the reach of the process of the other. Hagan v. Lewis, 10 Pet. 400; Brown v. Clark, 4 How. 4; Pulliam v. Osborne, 17 How. 471; Taylor v. Caryl, 20 How. 583; Fox v. Hempfield R. Co. 2 Abb. U. S. 151; Johnson v. Bishop, 1 Woolw. 324; S. C. 8 Bank Reg. 533.

Petition dismissed.

In re AH LEE.

(District Court, D. Oregon. April 19, 1880.)

1. IMPRISONMENT.

The national courts have jurisdiction to relieve any person from imprisonment under color of the authority of a state, without due process of law, contrary to the fourteenth amendment.

2. DUE PROCESS OF LAW.

A person imprisoned under a valid law, although there is error in the proceeding resulting in the commitment, is not imprisoned without due process of law, contrary to the fourteenth amendment. 8. DE FACTO OFFICER.

A person in office by color of right is an officer de facto, and his acts as such are valid and binding as to third persons; and an unconstitutional act is sufficient to give such color to an appointment to office thereunder.

4. SAME.

The constitution of Oregon authorizes the legislature, when the population of the state equals 200,000, to provide by election for separate judges of the supreme and circuit courts. On October 17, 1878, the legislature passed an act providing for the election of such judges at the general election in June, 1880, and also that the gov ernor should appoint such judges in the meantime, which was done. Held, that admitting such act was unconstitutional, because the population of the state was less than 200,000, and that the appointments by the governor were therefore invalid, and also because the constitution only authorized the selection of such judges by election, still the persons so appointed under the act, and performing the duties of the judges of said courts, were judges de facto, and a person imprisoned under a judgment given in one of them, convicting him of a crime, is not thereby deprived of his liberty without due process of law, contrary to the fourteenth amendment.

Habeas Corpus.

Rufus Mallory and John W. Whalley, for petitioner.

DEADY, D. J. This is a petition for a writ of habeas corpus directed to the sheriff of this county commanding him to produce the body of the petitioner, Ah Lee, before this court, together with the cause of his detention. Substantially the petition states that the petitioner is a citizen of the empire of China; that he has been indicted and convicted of the crime of murder in the circuit court for the county of Multnomah and state of Oregon, alleged to have been committed in the killing of one Chung Su Ging about October 3, 1878, in a joss house in this city, the judgment of which court was afterwards affirmed by the supreme court of the state; that afterwards said circuit court, in pursuance of a mandate from said supreme court, appointed April 20, 1880, as the day on which the judgment aforesaid should be executed by hanging the petitioner; that neither the person who acted as judge of said circuit court during the pendency of said proceeding, nor those who acted as judges of said supreme court during the same, were ever appointed or elected judges of said courts, or any of them, in pursuance of any law or authority of the state of Oregon; that neither they, nor any of them, had any power or authority to act as such judges during the pendency of said proceeding, or at all, and that therefore said proceeding and the judgment therein were carried on and had without due process of law, within the meaning of article 14 of the amendments of the constitution of the United States, and are therefore void and of no effect; that the sheriff of said county now unlawfully restrains the petitioner of his liberty in pursuance of said void and pretended judgment, and also threatens and intends to deprive him of his life, as therein provided and directed. Besides these allegations contained in the petition, it was assumed and understood upon the argument that the following facts were judicially known to the court: That on October 17, 1878, the legislature of this state passed an act entitled "An act to provide for the election of supreme and circuit judges in distinct classes," (Sess. Laws 1878, p. 33,) by which it was provided that at the general election in June, 1880, there should be elected three jus

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 provided that, "within 20 days after the taking effect of this act, the governor shall appoint three judges of the supreme court and five 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 governor appointed certain persons to be judges of the supreme and circuit courts accordingly, who entered upon these respective 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 unconstitutional, and the appointments thereunder illegal and void, and therefore the petitioner is in custody without due process of law.

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 Revised Statutes, which provide for the issuing of the writ of habeas corpus by the courts and judges of the United States. The 753d section of the Revised Statutes provides that, among other cases, the writ may "extend to a prisoner" who “is in custody in violation of the constitution, 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 the original constitution, is the supreme law of the land, and therefore, within the limit of its operation, the national government is superior to that of the state. Section 5 of the amendment 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,"

congress has exercised this power in the passage of the act of February 5, 1867, (14 St. 385; Rev. St. § 753,) which authorizes the national courts to inquire, by habeas corpus into the cause of detention of any one who "is in custody," whether under the authority of the state or otherwise, “in violation of the constitution, or a law or treaty of the United States," and to discharge him therefrom in case he is held in contravention thereof. If, then, the petitioner is restrained of his liberty or adjudged to lose his life by the act or agency of the state, without due process of law, he is so restrained or adjudged in violation of the constitution of the United States, and therefore this court has power, and it is its duty, to interfere and relieve him from such restraint or adjudication.

Argument cannot make the case plainer than the mere statement of it. The conclusion necessarily follows from the premise. The state can only act through individuals, and when it does so their acts are the acts of the state. As was said by Mr. Justice Strong, in delivering the opinion of the court in Ex parte Coles, at the present term of the supreme court: "We have said that the prohibitions of the fourteenth amendment are addressed to the states. They are: " No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' They have reference to the actions of the political body denominated a state, by whatever instruments or in whatever modes that action may be taken. A state acts by its legislature, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exercised, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever by virtue of public position under a state government deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition, and as he acts in the name and for the

state, and is clothed with the state's power, his act is that of the state. This must be so or the constitutional prohibition has no meaning, when the state has clothed one of its agents with power to annul or evade it."

And again, in speaking of the power of congress to enforce these prohibitions, and the supposed want of it in regard to the injunctions addressed to the states in the original constitution, as was said in Kentucky v. Dennison, 24 How. 66, he says: "But the constitution now expressly gives authority for congressional interference and compulsion in the cases embraced within the fourteenth amendment. It is but a limited authority, true, extending only to a single class of cases, but within its limits it is complete." In re Parrott, U. S. C. C. Dist. of Cal., Sawyer and Hoffman, JJ.,* lately held that the constitution and laws of California, forbidding the employment of Chinese by corporations, was a denial by the state of the equal protection of the laws to the Chinese, and therefore void, and took Parrott upon a habeas corpus out of the hands of the state authorities, where he was held upon a criminal charge for violating these laws, and discharged him, as being in custody contrary to the constitution of the United States.

It is admitted that the state has the power to deprive persons of life, liberty, and property, provided it is not done without due process of law. The power to do this, so far as it ever existed, is denied to and in effect taken away from the state by the fourteenth amendment. And this is not all. In case the state does so deprive any one, or attempts to, power is conferred upon the general government to interfere and prevent or correct the wrong. It is worse than idle to talk about the right of a state to do what the constitution prohibits it from doing, or the want of right in the United States to do what the constitution expressly authorizes it to do. The constitution, and not the local convenience, passion, or interest, is the standard and measure of the relative right and power of a state and the United States in our form of government. This fourteenth amendment was made a part of the constitution by the ratification of the states, including Oregon, and *Reported a 1 FED. REP. 481.