concurring specially. I concur in all that is said by my learned associate who speaks for the court. In addition, I deem the following views to be appropriate. Where a person is illegally restrained of his liberty, the remedy is habeas corpus. Yet the great weight of'State and Federal authority, including the United States Supreme Court, is that these questions can not be raised even by habeas corpus. In Ex parte Ward, 173 U. S. 452 (19 Sup. Ct. 459, 43 L. ed. 765), it was unanimously decided that a person convicted at a trial presided over by a judge without title to hold office could not be discharged, the judge’s power hot being open to collateral attack. This case was followed in Dones v. Urrutia, Warden of the Penitentiary of Porto Rico, 202 U. S. 614 (26 Sup. Ct. 767, 50 L. ed. 1172), and in many other State and Federal cases. Morford v. Oklahoma, 54 L. R. A. 513 (10 Okla. 741, 63 Pac. 958); Minnesota v. Bailey, 19 L. R. A. (N. S.) 775 (106 Minn. 138, 118 N. W. 676, 130 Am. St.RE. 592, 16 Ann. Cas. 338). In these eases -it was contended that the presiding judge did not in law hold the office. In the Morford case it was said that “the acts of such officers are held to be valid because the public good requires it. The principle wrongs no one. A different rule would be a source of serious and lasting evils.” It would seem that if the acts of the presiding judge could not be collaterally called in question by habeas corpus, certainly those of a warden could not be collaterally attacked in equity.
The Dones case went to the United States Supreme Court from the Supreme Court of Porto Eico. Dones had been convicted of a felony and sentenced to death, lie sought release from the custody of the warden, on the ground that the judgment was illegal because the trial court was not legally organized, and because the judge who rendered the judgment was not legally authorized to *216try the cause, since his appointment was contrary to a law passed by the legislature. In the opinion of the Porto Eico Supreme Court we find the following: “The second point relied on for the granting of this writ is that Hon. James A. Erwin, the district judge who tried the ease of the People of Porto Rico v Francisco Dones, in the'court of Humacao, and who sentenced him to the death penalty, was not legally and properly appointed, and has no authority to act as such district judge, because he was not, at the date of his appointment by the governor and .confirmation by the executive council of Porto Eico, a lawyer authorized to practice in the Supreme Court of this island. . . Under all the authorities, without a break in the current, we find that, even though Judge Erwin were not legally and properly qualified to act as judge, and even if his appointment were not remediable and the defect in his appointment still continued up to the present time, he was at least, if not a judge de jure, a judge de facto; and being such, the judgment rendered by him in this case can not be called in question on habeas corpus.” The United States Supreme Court affirmed this judgment.