Rives vs. Pettit, et al., 4 Ark. 582

By the Court, Dickinson, J. The record in this case states that the proceedings were had before a particular judge, by name, and it is contended that this court is bound to know that he was not commissioned for the circuit in which he presided, and, therefore, his acts were coram nonjudice, and utterly void. This case is peculiarly situated, and bears but little analogy to any one that has been previously decided by the Supreme Court of the United States, or any of the several courts of the Union. It must, therefore, be investigated and determined upon its own particular state of facts.

The officer who presided, was acting in obedience to the authority of the Legislature, which this court has declared to be invalid, not because the General Assembly had not ample and plenary power over the subject upon which they legislated, but because in attempting to prescribe an interchange of circuits, they exceeded that power, in making the rule permanent and not temporary. The circuit court, in this instance, is a constitutional court, and always in esse. The judge who presided, was ineligible to the exercise of the office, for the time being.

The inquiry now is, were his acts nullities, and absolutely void, as to third persons and the public, on this account, and that, too, in a case where the parties voluntarily submitted to his jurisdiction, never attempting to question his power? Do his acts bind until his power is vacated by a regular judicial process and trial? or is it lawful for each citizen, individually, or,the community, in its aggregate capacity, to resist and annul his authority? To whom belongs the power of rightly investigating, and finally settling, the constitutionality or unconstitutionality of

an act of the Legislature? to the people or the judiciary ? The inquiry solves the question. If to the people this power appertains, then the authority of the government, while its acts are in the progress of execution, is subject to the dominion of arms, and not to the rules of law.

This view of the case is strengthened by the consideration that should the Legislature proceed to elect a person to fill the office of judge, who, by the constitution, was disqualified to hold it, and should the Governor commission him under this illegal election, and he take possession of the office and administer justice, and afterwards his commission should be vacated, would his acts in the mean time not bind third parties and the public? They unquestionably would.

Now, in the case supposed, the officer would be unconstitutionally elected and commissioned, but how could that affect his acts and proceedings, until his authority and commission were regularly and properly abrogated? His acts for the time being must be binding, because he was inducted into the office under the appearance of right, and by authority of law, and an executive commission.

And each department of government is bound to show that kind of deference and respect to the acts of the others that are clothed with regular authority, although it may turn out, upon future inquiry, that authority was improperly and unconstitutionally exercised. The case at bar stands upon a like principle and parity of reason. And if the acts of the officer in the case put, would be good against third persons or the public, the proceedings of the judge, in the present instance, cannot be absolute nullities.

If this is true as a general proposition, it must be especially so when applied to the peculiar facts of this case. Here the suitors submitted themselves to the jurisdiction of the judge, and never caused any statement to be made, by which it expressly appears that the interchange of riding took place under the regulations attempted to be prescribed by the Legislature; nor was his authority in any manner impeached or called in question.

If any hardship or injustice were about to be perpetrated, it was not only competent, but perfectly lawful, upon such suggestions, for the party to have proceeded in a proper manner to have caused his legislative authority to have been set aside. It is too late now to take advantage of this defect or omission; for if such indulgence was allowable, the constitution and the laws, instead of providing a shield for the protection of private right, might be converted into a weapon of offence against the peaceful and successful operations of the government.

Such a state of things would never be permitted or allowed by a court of justice, entertaining proper respect for the other two departments of the government; especially by the judiciary department, of which this court is the last arbiter and expounder of the constitution and laws themselves, under which life, liberty, and property, are preserved, not only to be protected, but rendered inviolably secure. Judgment affirmed.