
    People, Plaintiff and Appellee, v. Pietrantoni, Defendant and Appellant.
    Appeal from the District Court of San Juan in a Prosecution for Assault and Battery.
    No. 1876.
    Decided June 9, 1922.
    Judge de Jure. — When it is alleged that an aet is unconstitutional because it attempts to appoint judges already in office to courts newly created, if the question is duly raised by a person tried before one of the said judges, that judge was still a judge de jure by .virtue of previous enactment.
    Judge de Pacto. — If the Legislature creates new courts and a person is tried before a judge who has been assigned by the Legislature, but not appointed by the Governor, to one of the new courts, the Legislature confers a eolor of authority and in the absence of objection in the trial court the judge assigned is a judge de facto.
    
    The facts are stated in the opinion.
    
      Mr. J. R. Quinones for the appellant.
    
      Mr. José E. Figueras, Fiscal, for the appellee.
   Mr. Justice Wolf

delivered the opinion of the court.

Appellant was tried and convicted in the Municipal Court of San Juan of an offence of assault and battery. He .was tried on appeal in the District Court of the First District of San Juan. There is no statement of the case or hill of exceptions in the record and, beyond a plea of not guilty, no motion verbal or otherwise appears in the record. The appellant, here attacked the jurisdiction of the court below.to try his case, but conceded that no such question had been presented in the court below.

The question now raised is substantially that the District Court of San Juan had no jurisdiction to try the appellant’s case, inasmuch as law No. 41 of 1921 was unconstitutional. In effect the appéllant maintains that there was no such court. Appellant concedes that most of .the questions-raised or errors assigned have been disposed of by the opinion of this court in the certiorari case of Toro v. District Court of San Juan, ante, page 501. Appellant now is insisting-only on one- point, namely, that if two new courts were ere-ated, the Legislature, in Act. No. 41, has usurped the appointive power of the G-overnor in assigning or appointing judges to the new courts. We may say in passing that if the Act attempting to create two new courts was unconstitutional, then the judge before whom the appellant was tried was still a judge de jure of the old District Court of San Juan and the appellant was properly convicted.

These two new courts were created out of an old judicial district and the actual judges already appointed were assigned by the Legislature to service within the same territorial limits. With the possible exception of the power of appointment itself, the Legislature is fully empowered by the Organic Act to create new districts and define their jurisdiction. What the Legislature did then was to exercise no power of appointment, but merely to change the actual jurisdiction of two judges who were assigned to sit within the same territory for which they were appointed. A citation from Lamar v. United States, 241 U. S. 117, opinion of Chief Justice White, is germane:

“5. Finally we come to consider a contention not raised in the trial court, not suggested in the court below while the case was there pending and before the order of dismissal which we have reviewed was entered, and not even indirectly referred to in this court when the case was pending on the direct writ of error which writ was, as we have seen, dismissed because it presented for consideration no question of jurisdiction and' none arising under the Constitution. Indeed the contention now relied on was for the first time urged in a supplemental brief filed on the present hearing. The proposition is that the trial court had no jurisdiction, in fact that no such court existed, because the trial was presided over by the District Judge •of the Western District of Michigan assigned to the Southern District of New York conformably to the statute (Oct. 3, 1913, c. 18, 38 Stat. 203) and that the effect of such assignment under the statute was virtually to destroy the Southern District of New York hy creating a new district whose boundaries were undefined, thus violating the rights secured to the accused by the Sixth Amendment :since he was subjected to trial in a district not established when the offense with which he was charged was committed. In fact the further contention is made that to assign a judge of one district and one circuit to perform duty in another district of another circuit was in substance to usurp the power of appointment and confirmation vested by the Constitution in the President and Senate. As to the first of these contentions, we think it suffices to say that it rests upon a construction of the words of the statute authorizing the assignment of a judge of one district and circuit to duty in another district and circuit which is wholly unfounded and which rests upon a premise conflicting with the practice of the Government under the Constitution substantially from the beginning. As to the second contention, we think merely to state it suffices to demonstrate its absolute unsoundness. ’ ’

In other words it is plain that no power of appointment has been interfered with.

Appellant also urged that the’ judges must be considered new appointments, as their salaries were increased, a thing prohibited by the Organic Act. Such a conclusion might affect the increase of salaries, but could not affect the jurisdiction. But in any event the appellant was tried in a court which had jurisdiction, and even supposing that the person who presided had not been duly appointed to sit on that newly created court, yet nevertheless he was a judge de facto. The appellant maintains that he was not and that judges de facto can only apply to persons duly named who have in some respect failed to qualify, but the appellant cites us to no authority. We think the color of authority under which an official acts could come from the Legislature as well as from the appointing power. These considerations are strengthened by the fact that no challenge in any form was presented to the court’s jurisdiction.

Finding no error the judgment must be

Affirmed.

Chief Justice Del Toro and Justices Aldrey and Franco Soto concurred.

Mr. Justice Hutchison concurred in the judgment.  