This is an appeal from a judgment in a habeas corpus case remanding the petitioner. It is brought under section 238 of the Judicial Code (Comp. St. § 1215), on the ground that it involves the construction or application of the Constitution of the United States.
March 5, 1919, Donegan was indicted in the United States District Court for the Southern District of Florida, and in the Tampa Division, charged with the offense if misapplication and abstraction of funds of a national bank in violation of the banking laws of the United States. At a subsequent term he was tried, convicted, and sentenced to a term of three years' imprisonment in the Atlanta Penitentiary. On a writ of error his conviction was affirmed by the Circuit Court of Appeals for the Fifth Circuit. He applied for a writ of certiorari in this court, which was denied. 265 U.S. 585, 44 S.C.t. 459, 68 L. Ed. 1192. While in the custody of the United States marshal, after the coming down of the mandate of the Circuit Court of Appeals, he filed this petition for the writ of habeas corpus. The ground for the petition is that United States Circuit Judge Julian W. Mack, who presided in the cause in which the petitioner was convicted, had no power or jurisdiction to act as judge in the District Court for the Southern District of Florida. Judge Mack, as the petition avers, was one of the five additional United States Circuit Judges appointed at the time of the creation of the Court of Commerce, by virtue of the Act of June 18, 1910, 36 Stat. 539, c. 309. The petition sets out the designation in accord with which Judge Mack sat:
'Honorable Julian W. Mack, United States Circuit Judge, New York, N. Y.-Sir:
'The senior Circuit Judge of the Fifth Circuit having certified that, on account of the accumulation and urgency of business in the United States District Court for the Southern District of Florida, it would be a great public advantage if you could be assigned to service in said District Court, and your consent in writing to be designated and appointed to serve in said District Court having been duly signed and exhibited to me: Now, therefore, pursuant to the authority vested in me by section 201 of the Judicial Code of the United States as amended by the acts of Congress approved October 22, 1913, I do hereby designate and assign you for service in the District Court of the United States for the Southern District of Florida, during the period commencing January 20, 1923, and ending March 31, 1923, and for such further time as may be required to complete unfinished business.
'Dated January 11, 1923, Washington, D. C.
'Wm. H. Taft,
'Chief Justice of the United States.' It is said that this designation was without authority of law, and therefore that the proceeding in the District Court against the petitioner was coram non judice, and his conviction and present custody in pursuance thereof is without due process of law, in violation of the Fifth Amendment.
The original act creating the court had this provision (36 Stat. 541, c. 309, § 1):
'If, at any time, the business of the Commerce Court does not require the services of all the judges, the Chief Justice of the United States may, by writing, signed by him and filed in the Department of Justice, terminate the assignment of any of the judge or temporarily assign him for service in any Circuit Court or Circuit Court of Appeals.
When by the Judicial Code the Circuit Courts were abolished (36 Stat. 1087), and in chapter 13 the powers of the Circuit Courts were conferred upon the District Courts, sections 291 and 292 of that chapter (Comp. St. §§ 1268, 1269) provided:
'Sec. 291. Wherever, in any law not embraced within this act, any reference is made to, or any power or duty is conferred or imposed upon, the Circuit Courts, such reference shall, upon the taking effect of this act, be deemed and held to refer to, and to confer such power and impose such duty upon, the District Courts.
'Sec. 292. Wherever, in any law not contained within this act, a reference is made to any law revised or embraced herein, such reference, upon the taking effect hereof, shall be construed to refer to the section of this act into which has been carried or revised the provision of law to which reference is so made.'
In addition to these provisions, section 201 of the Judicial Code provided expressly as follows (36 Stat. 1087, 1147 (Comp. St. § 1110)):