Opinion of the Court.

are solely the creation of statute, and the place in which a judge thereof may exercise jurisdiction is subject absolutely to the control of Congress.

At first there was no authority for the temporary transfer of one judge to another district. The Judiciary Act of September 24, 1789, c. 20, § 6, 1 Stat. 73, 76, simply provided that a District Judge, if unable to attend at the day appointed for the holding of any term, might, by his written order, continue it to any designated time, and that in case of a vacancy all matters pending in the court should be continued as of course until the first regular term after the filling of the vacancy.

Since then there has been repeated legislation, each successive statute seemingly intended to make larger provision for the regular and continued transaction of the business of the District Court. Thus, in 1850, 9 Stat. 442, Rev. Stat. § 591, an act was passed providing that when any District Judge was prevented by any disability from holding any term, and that fact was made to appear by the certificate of the clerk under the seal of the court to the Circuit Judge, such judge might, if in his judgment the public interests so required, designate and appoint the judge of any other district in the circuit to hold such term and to discharge all the judicial duties of the judge so disabled during such disability. This, it will be noticed, applied only in case of disability on the part of the regular District Judge. Two years thereafter, in an act 10 Stat. 5, carried into the Revised Statutes as § 592, like authority was given to call in the judge of some other district when, as shown by the certificate of the clerk, from the accumulation or urgency of business in any District Court, the public interests so required. This statute contemplated the doubling of the judicial force, and authorized both judges, the regular and the appointed judge, to act separately in the discharge of all duties. Finally, in 1871, an act was passed, 16 Stat. 494; Rev. Stat. § 596, which reads as follows:

"It shall be the duty of every Circuit Judge, whenever in his judgment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section 591, the District Judge of any judicial district within his circuit

Opinion of the Court.

to hold a District or Circuit Court in the place or in aid of any other District Judge within the same circuit; and it shall be the duty of the District Judge, so designated and appointed, to hold the District or Circuit [Court] as aforesaid, without any other compensation than his regular salary as established by law, except in the case provided in the next section."

This gives full power to the Circuit Judge to act without reference to any certificate from the clerk, whenever in his judgment the public interests require. It is contended that the words "in the place or in aid of" limit the power of designation and appointment to those cases in which there is an existing District Judge. This construction, it is claimed, finds support in section 602, Rev. Stat., which in substance reënacts the latter part of section 6 of the judiciary act of 1789, to the effect that in case of a vacancy in the office of District Judge all matters pending before the court shall be continued, of course, until the next stated term after the appointment and qualification of his successor. While "in aid of" naturally imply some existing judge to be aided, the words "in the place of" do not necessarily carry the same implication. Commonwealth v. King, 8 Gray, 501. They may, without doing violencé to language, be construed to mean that the designated judge is to take temporarily the place which is or has been filled by a regular judge.

Section 602 throws little light on the question. It does not purport to abolish the term. The existence of a term does not depend on the fact that any business is transacted thereat, nor does any general order of continuance of itself close the term. A simple illustration will demonstrate this. Suppose at the commencement of any regular term of this court a general order should be entered continuing all matters to the succeeding term, no one would contend that such an order of itself adjourned the term, or prevented the court from adjourning from day to day until such time as it saw fit to order a final adjournment. The officers attending after the continuance of the cases and until the final order of adjournment would unquestionably receive their per diems for attendance upon a term of the court. The declaration that the process, etc.,

Opinion of the Court.

shall be "continued, of course," means simply continued without any special order, and was obviously designed to prevent that failure of right which in many cases might otherwise result from the absence of a judge. It is familiar that process is often made returnable at a term, and notices are given of applications for orders at a term. In these and similar cases rights are created which may depend for their continued existence upon some action of the court at the term. Clearly, the statute does not destroy or even temporarily suspend the jurisdiction of the regular judge when appointed over matters pending in his court.

He

But whatever doubts may exist whether the order of designation by the Circuit Judge was within his power, there is another consideration which is decisive of this case. Judge Seymour must be held to have been a judge de facto, if not a judge de jure, and his actions as such, so far as they affect third persons, are not open to question. Ball v. United States, 140 U. S. 118, 129; Norton v. Shelby County, 118 U. S. 425; Hunter's Adm'r v. Ferguson's Adm'r, 13 Kansas, 462. The time and place of a regular term of the District Court were fixed by law at Greenville, on the first Monday of February. Judge Seymour was a judge of the United States District Court, having all the powers attached to such office. appeared at the time and place fixed by law for the regular term, and actually held that term. The Circuit Judge had, generally speaking, the power of designating the judge of some other district to do the work of the District Judge in this district. The order of designation was regular in form, and there was nothing on its face to suggest that there was any vacancy in the office of District Judge for the District of South Carolina. Any defect in the order, if defect there was, is shown only by matters dehors the record. While this may not be conclusive, it strongly sustains the contention of the government that Judge Seymour was, while holding that term, at least a judge de facto. Whatever doubt there may be as to the power of designation attaching in this particular emergency, the fact is that Judge Seymour was acting by virtue of an appointment, regular on its face, and the rule is

Opinion of the Court.

well settled that where there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto and binding upon the public. Of course, if he was judge de facto his orders for the continuance of the term from day to day until February 12, when the regular judge took his place upon the bench, were orders which cannot be questioned, and the term was kept alive by such orders until Judge Brawley arrived. The record shows that the indictment was not found until after the latter was on the bench. Whether the grand jury was in fact empanelled or not before Judge Brawley took his seat, does not appear from the record. While Rev. Stat., § 817, provides that ordinarily jurors shall for this district be drawn at a preceding term, yet such provision does not conflict with the power granted in section 810 to all Circuit and District Courts, as follows: "And either of the said courts may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so." Under this provision the judge may at any term, regular or special, and at any time in the term, summon a grand jury.

Indeed, we may assume that all the proceedings in respect to this case were held before the regular judge of that court, and that the only orders which Judge Seymour made bearing upon this case were the daily orders of continuance of the court and the keeping alive of the term from February 5 to February 12, and these were orders made by a de facto judge of that court, and are, as we have stated, not open to challenge. The fact that in the recital of the proceedings the term is spoken of as a special term is immaterial in the face of the statement that the regular term was opened on February 5 and continued from day to day, until after the proceedings complained of had taken place. It follows from these considerations that the first question certified to this court must be answered in the affirmative. In view of this answer it is unnecessary to consider the second question.

The case will, therefore, be sent back to the Court of Appeals with an answer to the first question in the affirmative.

Statement of the Case.

BALTIMORE & OHIO RAILROAD COMPANY v.

GRIFFITH.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.

No. 53. Argued October 18, 1995. - Decided November 18, 1895.

When the judgment actually rendered in the court below was for an amount giving this court jurisdiction, which amount was reached by adding to a verdict for $5000, interest from the time of the verdict to the time of the entry of the judgment in a district where the local state law does not permit that to be done, and the plaintiff below, although excepting to the allowance of interest, and to the refusal of the court below to permit a remittitur, brings no writ of error to correct the alleged error, this court cannot dismiss a writ of error brought by the defendant to review other rulings in the case.

In an action against a railway company to recover damages for injuries caused by one of its trains striking & wagon in which the plaintiff and another woman were seated as it was crossing the track on a public highway at grade, the negligence of the defendant having been established, there was further evidence tending to show that the women were driving slowly and with a safe horse; that the train was several minutes behind time; that as they approached the low place at which a train could be seen if one were there, they stopped to look and listen, but neither saw nor heard anything; that after stopping they started driving slowly up the hill to a point at the top between forty and fifty yards from the track, where the slope commenced, and there they stopped again and listened, but heard nothing; they then drove slowly down the hill, both listening all the time, without talking, and heard nothing; and that just as they got to a cut and the horse had his feet on the nearest rail, the train came around a curve and the collision occurred. Held, that the question whether there was contributory negligence on the part of the plaintiff was properly submitted to the jury for determination.

THIS was an action brought by Emma Griffith in the Court of Common Pleas of Licking County, Ohio, against the Baltimore and Ohio Railroad Company, to recover for injuries received on August 1, 1888, by the collision of a train of that company with the vehicle in which plaintiff was then being conveyed. The cause was removed on the petition of the company into the Circuit Court of the United States for the Southern District of Ohio, where it was tried, and resulted in