
    Louisa Nash, Appellant, v. The People of the State of New York, Respondents.
    A city judge of the city of New York has no authority to issue writs of habeas corpus, he having no jurisdiction in habeas corpus proceedings.
    Appeal from, a judgment of the Supreme Court rendered ' at General Term in the first district.
    Louisa Nash was arrested and committed by a police justice of the city of New York on a charge of larceny. The city judge of the city of New York allowed a writ of habeas corpus, upon which she was discharged, on the ground that the commitment was defective on its face. The General Term of the Supreme Court, in the first district reversed this decision, on certiorari, on the ground that the city judge of the city of New York had no jurisdiction in the habeas corpus proceedings.
    Prom the judgment entered on this decision the present appeal is taken.
    
      E. T. Gerry, for the appellant.
    
      A. Oakey Hall, for the respondents.
   Scrugham, J.

The office of city judge of the city and county of New York was created by statute on 8th of April, 1850, and the powers conferred upon the new office are specified as follows: all judicial powers vested by law in the recorder of the city of New York are hereby conferred upon such city judge, and said city judge shall, concurrently with said recorder, perform and discharge all judicial duties imposed upon such recorder.”

The powers thus conferred are only such as the recorder possessed at the passage of this act, and if he had not then the power to issue writs of habeas corpus at chambers, the city judge created by the act would not acquire it; and, unless we find that the recorder possessed the power, it will not be necessary to determine whether in exercising it he acted judicially or ministerially.

It was not a power which, belonged to the office of recorder per se, but the right to exercise it was conferred upon him. by the act of 1801 “ to prevent unjust imprisonment by securing the benefit of the writ of habeas corpusand the act of the same date entitled, “An act concerning the Supreme Court.”

These statutes came within the purview of revised acts of . similar titles passed at the thirty-sixth session of the legislature in 1813, and were repealed by the general repealing act passed April 13th, 1813, and entitled, “An act to "repeal the acts and parts of acts therein mentioned.” And these two revised acts of 1813 were, on the revision of the statutes in 1828, themselves repealed by the general repealing, act passed December 10, 1828.

These repeals left the recorder of New York without any power or authority to issue writs of habeas corpus at chambers, except such as was conferred upon him in common with recorders of other cities by section thirty-two of title two, chapter three, part three, of the Devised Statutes, which declares that' every such recorder shall, by virtue of his office, be a Supreme Court commissioner.

The power belonged to that office, and it was only in that character that the recorder could exercise it.

The statute was not an act enlarging the powers of the office of recorder; it did not provide that the recorder of a city should have the same powers that were possessed by Supreme Court commissioners; but that the officer, the incumbent of the office, should, by virtue of it, be a Supreme Court commissioner.

This he could not be after that office was abolished, as it was, by the Constitution, on the first Monday of July, 1847; and unless after the adoption of the Constitution the powers pertaining to it were by statute continued in or bestowed upon recorders of cities, they cannot be exercised by them.

They were not saved to the recorder by the twelfth section of article fourteen of the Constitution, for the powers and jurisdictions to which that section applies are those of courts, and not .to the officers who hold them.

It was held in Renard v. Hargous (3 Kern., 259), that the powers which the judges of the Superior Court exercised as ex officio Supreme Court commissioners, were continued to them by the seventh section of the act of March 12, 1847, providing for their election, which declares, “ that the justices of the Superior Court, whose election is provided for by this act, shall have and possess the same powers and perform the same duties as the justices of that court now have and perform.”

It will be perceived that this act continues in the officers (justices of the court) the powers they possessed, while the section of the Constitution just referred to continues in the court its powers and jurisdiction, and it was upon the provisions of the act of 1847, and not upon those of this section of the Constitution, that this court determined that the justices of the Superior Court had authority to issue attachments against absconding, concealed or non-resident debtors.

As no similar statute was enacted in relation to recorder, and as the authority which they possessed as ex officio Supreme Court commissioners, and by virtue of which alone they were empowered to issue writs of habeas corpus at chambers, was determined by the constitutional abolition of that office on the first Monday of July, 1847, no authority to issue such writs devolved upon the city judge, for no power was conferred upon that officer by the act of 8th April, 1850, creating his office, other than such as was then vested in the recorder of the city of New York.

The judgment should be affirmed.

Davies, Ch. J.

The question presented for adjudication upon this appeal is, whether the city judge of the city of New York, is authorized by any existing law of this State, out of court, to issue and allow the writ of habeas corpus. It is claimed on the part of the appellant, that such power and authority are vested in the recorder of said city, and that the powers and functions of the recorder have been conferred by law upon the city judge. It will be appropriate to consider in the first place, whether the recorder of the city of Mew York, has the power to allow the writ, and in the next place, if he has, then to inquire, whether that power has been conferred upon the city judge. The history of the legislation of this State, in reference to this matter is as follows:

The act of February 21, 1787 (1 Greenl., 369), authorized the chancellor or justices of the Supreme Court to issue the writ of habeas corpus. By the act pf 24th March, 1801 (W. & S. Laws, vol. 1, p. 286,) entitled “An act to prevent unjust imprisonment by seeming the benefit of the writ of habeas corpus,” the writ could be moved for and obtained out of the Court of Chancery, or out of the Supreme Court, and also from the chancellor, and any judge of the Supreme Court out of court; and section four of that act declared that if the chancellor, or any judge of the Supreme Court in vacation time, should deny to allow the writ, he should forfeit the sum of $1,250 to the party grieved. Section twelve of said act (id., p. 290) provides, that the recorder of the city of New York, shall be ex officio a commissioner, equally authorized and required, with a judge df the Supreme Court, to do and execute the powers and trusts, which said judge is authorized and required to perform by said act. This I believe to be the original source of the authority of the recorder of the city of New York to issue and allow said writ.

The act of March 24,1801, entitled “ An act concerning the Supreme Court ” (W. & S. Laws, vol. 1, p. 314) by the eighth section, declares that the recorder of the city of New York shall be ex officio a commissioner, equally authorized with a judge of the Supreme Court to do and perform the acts which any such judge might do by virtue of said act out of court, except taxing costs and signing rolls; “ and also to allow writs of habeas corpus, and to admit prisoners to bail in all cases and in like manner as any such judge may do.” This section would seem to be a repetition of and an enlargement of the powers conferred upon the recorder by the 12th section of the act of the same date, already referred to.

An act was passed April 10, 1805. (W. & S. Laws, vol. 4, p. 315), providing for the appointment of a commissioner for the county, of Oneida, with the same powers as those conferred upon the recorder of New York, by the eighth section of the second act of March 24, 1801, already referred to, and with some additional powers.

An act was passed on the 2d of April, 1810, authorizing the appointment of a commissioner for the county of Ontario, with the like powers as contained in the last mentioned act. (W. & S. Laws, vol. 6, p. 54.) Both these last mentioned acts were revised in the revision of 1813. (1 Rev. Laws, p. 322.)

The two acts of March 24, 1801, were also revised in this revision. (1 Rev. Laws, pp. 318, 354.) And in this revision of the act first referred to, of March 24, 1801, entitled “An act to prevent unjust imprisonment,” etc.,- section twelve of that act was omitted, leaving the authority by virtue of this last mentioned revised act, to issue said writ with the Court of Chancery and the Supreme Court, and in vacation, with the chancellor, or any judge of the Supreme Court. In the revision of the act of March 24,1801, entitled “ An act concerning the Supreme Court,” (1 Rev. Laws, 318), the same powers that were conferred upon the recorder of the city of New York, by the eighth section of the act of March 24,1801, were by the eleventh section of this revised act, conferred upon the recorders of the cities of New York, Albany and Hudson, and this undoubtedly is the reason why the twelfth section of the act of March 24,1801, entitled “ An act to- prevent unjust imprisonment,” etc., was omitted in the revision of 1813 of the last mentioned act. The acts of March 24,1801, were in express terms repealed by act of April 13, 1813, entitled “ An act to repeal the acts and parts of acts therein mentioned.” (2 Rev. Laws, 556.) By the eleventh section of this revised act (Rev. Laws, -p. 321) the recorders of New York, Albany and Hudson, were declared ex officio commissioners, and equally authorized and empowered with the justices of the Supreme Court to do and perform out of court all that said judges might do, and to allow writs of habeas corpus and writs of certiorari, and, in the absence of the recorders of New York and Albany from either of said cities, the clerks of the Supreme Court residing therein, were authorized to perform the duties devolved upon such recorders, by such act, during such absence.

This act was amended by chapter 277 of Laws of 1818, (Laws of 1818, p. 298) but not in any particular essential to the question now under consideration. The revisers in their notes to the proposed revision of 1830, of the habeas corpus act say, “We have two statutes relating to the celebrated writ of habeas corpus ad subjiciendum, the revised act of 1813 (1 Rev. Laws, 354), and the amendatory act of 1818.” (Laws of 1818, p. 298; Stat. at Large, 5 ed. p. 511.) The acts of Feb. 25, 1813 (1 Rev. Laws, 318) and of April 5th, 1813 (1 Rev. Laws, 354) and the act of 1818, were all repealed by the general repealing act of December 10, 1828. (3 Rev. Stat., pp. 152, 159, Nos. 85, 92, 268.)

We are therefore to look to the Revised Statutes solely as to the powers, of the recorder of New York in the premises; and the following provisions of those statutes, so far as the powers of the recorder of New York are affected, supersede all previous enactments, and are to be regarded as the substitute therefor:

“Every recorder of a city and every judge of the county court of any county, being of the degree of counselor in the Supreme Court, shall, by virtue of their respective offices, be Supreme Court commissioners, and shall be authorized and required to perform, all the duties herein conferred.” (2 Rev. Stat., § 32, p. 281.)

The previous section, 18 (id., p. 279), defines the powers of Supreme Court commissioners, which, in brief, were, that such commissioners could discharge all the duties of a justice of the Supreme Court which the latter might perform and execute out of court.

By section 8 of article 14 of the Constitution of 1846, the office of Supreme Court commissioner was abolished from and after the first Monday of July, 1847. At the time this Constitution went into operation,'there were in the city of New York the Superior Court, Court of Common Pleas, Sessions and Surrogate’s Court; and section 12 of said article 14 declared that said courts should remain, until otherwise directed by the legislature, “ with their present powers and jurisdictions.” At this time the statutes of this State made it the especial duty of the recorder of said city to hold said Court of Sessions therein. (Davies’ Laws, p. 361.)

By chapter 255 of Laws of 1847 (Laws of 1847 vol. 1, p. 279), it was declared, in the seventh section thereof, that the justices of the Superior Court of said city, thereafter to be elected, should have and possess the same powers and perform the same duties as the justices of.that court then had, possessed and performed; and the same provision was made applicable to the judges of the Court of Common Pleas.

I have been unable, after the most diligent examination, to find any similar provision relative to the recorder of New York, and we must assume that the researches of counsel have been equally unavailing, or we should have had a,reference thereto. This court' held, in the case of Renard v. Hargous (3 Kern., 259), that .the justices of the Superior Court of. New York, who were, by the ¡Revised Statutes (2 R. S., p. 210, § 33) declared to be ex officio Supreme Court commissioners, ceased to be such on the first of July, 1847 ;• and, but for the provisions of the act of May 12,1847, continuing to them the same powers and authorizing them to perform the same duties as the justices of that court then had, possessed and performed, would have had no power after the adoption of the Constitution of 1846, to perform any of the duties devolved upon them by law, as ex ofició Supreme Court commissioners. In the view of this court, the only source of power from which the justices of the Superior Court could continue to discharge the duties of Supreme Court commissioners, was found exclusively in the act of May 12,1847. As the power of recorder of New York to issue the writ of habeas corpus,■ after the enactment of the ¡Revised Statutes, was derived exclusively from the authority conferred upon him by the provision already quoted, to be ex officio a Supreme Court commissioner, and authorized to perform all the duties conferred upon that officer, it legitimately follows, from the authority of this case, that, upon the abolition of the office of Supreme Court commissioner, all the powers and duties incident to that office which had been devolved upon any other officer fell with it.

This case conceded and was decided upon the principle that hut for the subsequent legislation the justices of the Superior Court, who were ex officio Supreme Court commissioners, would have had no power to discharge the duties pertaining to that office after its constitutional abolition; and as there is not found any other source of power for the recorder of New York to exercise the authority to issue the writ of habeas corpus, other than that of the provision of the Eevised Statutes authorizing him to perform the duties of Supreme Court commissioner, such office having been abolished, the powers and functions of it cannot any longer be exercised by that officer without further and additional legislation. These views acquire strong, if not decisive, confirmation from the case of Hayner v. James (17 N. Y., 316). In that case it was held that, although the Constitution had abolished the office of Supreme Court commissioner, its functions remain, and may be distributed by the legislature among any of the judicial officers authorized by the Constitution, and that the act of the legislature of 1849 (ch. 121), giving to the recorder of Troy the powers of a justice of the Supreme Court at chambers, is constitutional. The power of the recorder was sustained distinctly upon the ground that it was competent for the legislature to provide for the transaction of chamber business of the Supreme Court by committing it to existing judicial officers, in the manner it had been done by the act then under consideration. If the views of the appellant’s counsel be correct, the act of 1849, conferring the power upon the recorder of Troy, was entirely supererogatory, as the recorder of that city, by virtue of the general provision of the Eevised Statutes, was already a Supreme Court commissioner ex officio. (2 R. S., § 32, p. 210.) If legislation, subsequent to the abolition of the office of Supreme Court commissioner, was essential, as this court supposed it was, to enable the recorder of Troy to discharge the duties of a judge of the Supreme Court at chambers, it is not perceived why it is not equally essential to enable the recorder of the city of New York to discharge the same duties. The Eevised Statutes declare to whom the application for the writ of habeas corpus shall he made, and what tribunal or officers are authorized to issue the same.

1. To the Supreme Court during its sitting: ,

2. During any term or vacation of the Supreme Court, to the chancellor, or to any one of the justices of the Supreme Court, or any officer who may be authorized to perform the duties of a justice of the Supreme Court at chambers. (2 R. S., 466, 2d ed.)

It is thus seen that the recorder eo nomine, is not designated as one of the. officers authorized to grant the writ, but that he could have done so by virtue of that other provision of the statute constituting him a Supreme Court commissioner ex officio, and therefore authorized to perform and discharge the duties of such commissioner. As already observed, upon the abolition of the latter office, this court has held that all the 'powers and duties which another officer was authorized to perform ex officio, as such commissioner, ceased and could be no longer exercised by him without additional and further legislation.

It is not claimed on the part of the appellant that the city judge possesses any more extensive powers than those conferred upon the recorder. Such a claim, if made, could not successfully be maintained. The act creating the office of city judge was passed in 1850. (Laws of 1850, chap. 205, p. 388.) ■ And the third section, defining the powers of the city judge, is in these words :

“All judicial powers vested by law in the recorder of the city of Few York, are hereby conferred upon such city judge, and said city judge shall, concurrently with, said recorder, perform and discharge all judicial duties imposed upon such recorder.”

It is insisted upon, on the part of the people, that, assuming the recorder is authorized to issue, this writ, it by no means follows that the same power is conferred upon the city judge. We have before us the source and fountain from which the city judge derives all his powers, and, unless it be made to appear that the issuing of the writ is the exercise of a judicial power, it is very evident that' the authority to issue it, even though possessed by the recorder, has not been con-ferried upon the city, judge. The issuing of this writ is not a matter of discretion. The Revised Statutes declare, If any court or officer, authorized by the provisions of this article to grant writs of habeas corpus or certiorari, shall refuse to grant such writs when legally applied for, every member of such court who shall have : assented to such refusal, and every such .officer, shall severally forfeit to the party aggrieved one thousand dollars.” There has already been quoted the provision on .this subject existing previous to. the revision of 1830, and the revisers extended the penalty so as to include the judges of the court in term time.' They state as the ground of the proposed change, that “ no reason is perceived why the distinction made in the original section should be retained. ■ It is said that the judge acts ministerially and not judicially, in allowing or refusing the writ, and that he may therefore, ¡be subjected, to ■ a penalty. The same remark applies to the court, and if it be- deemed, just to impose a penalty- for the improper exercise of the, official function in the one case, why not extend it to the other ? ”

The legislature approved of these suggestions, and imposed a..penaIty.not only upon the officer, when not sitting as a court, or a component part thereof, who should deny the writ, but also, upon the members of' the court, when sitting and acting .as such, who should assent to or concur in such refusal. It would seem very clear, therefore, that the legislature assumed and intended to declare, that, in whichever capacity or character the judge or officer authorized to entertain applications .for-this writ might be supposed,to act, he "was,, in fact," to be deemed as acting ministerially and not- judicially. We are.driven to this conclusion, as it.Cannot be presumed that- the legislature intended to adopt a principle in .conflict with.long established and an uniform current of .authority, and: impose a penalty.upon a judge or subject "him. to personal responsibility; in .a" matter wherein he. acted ■ judicially.. (Seaman v. Potter, 2 Caines, 312; Moor v. Ames, 3 id., 170; Yates v. Lansing, 5 Johns., 282; Same v. Same, 11 id., 395; Jenkins v. Waldron, id., 114; Wilson v. The Mayor of New York, 1 Denio, 595.)

If it be conceded that the recorder had the authority, after the 1st of July, 1847, to issue the writ of habeas corpus, Such act is conclusively settled by the authorities quoted, and by legislative action and declaration, to be ministerial in its nature and not judicial.

Chief Justice Kent, in Yates v. Lansing (5 Johns., 297), says: “The chancellor and judges may refuse such a writ at their discretion, if applied for in term time, and the penalty will not attach. It is only when they refuse in a mere ministerial capacity to-allow a writ, that they are made responsible. The allowance of a writ in vacation is not a judicial act. * * * The habeas corpus act does not, then, in any of its provisions, violate or even touch-the principle that no suit lies for a judicial act.”

Platt, Senator, in the leading and prevailing opinion in the Court of Errors (11 Johns., 425), in the same. celebrated case, distinctly affirms these views of Chief Justice Kent, and says: “ I consider this section (giving a penalty) as having no application to the chancellor or judges in their judicial character. This penalty applies only to magistrates and others who act ministerially as conservators of the peace.” After referring to cases which must necessarily arise, if the' principle be recognized and sanctioned that judges are liable for acts done judicially, he adds: “These absurd consequences evince that, as cowls, they never were intended to be made responsible to the party- in a private suit. Consider them liable in their ministerial capacity only, and the construction- of-' the statute accords with the established and revered principles of the common law.”

Beardsley, J., in Wilson v. The Mayor, etc. (ubi supra), clearly -points out the' distinction between ministerial- and judicial duties, and the - complete' imffiunity secured in' the discharge of the latter class, and the liability incurred in the former. He says: “ When that is absolute, certain and imperative, and every ministerial duty is so, the delinquent officer is bound to make full redress to every person who has suffered by such delinquency. Duties which are purely ministerial in their nature are sometimes cast upon officers whose chief functions are judicial. When this occurs, and the ministerial duty is violated, the officer, although for most purposes a judge, is still civilly responsible for such misconduct. But when the duty alleged to have been violated, is purely judicial, a different rule prevails, for no action lies in any case for misconduct or delinquency, however gross, in the performance of judicial duties. And although the officer may not in strictness be a judge, still, if his powers are discretionary, and to be executed or withheld according to his own views of what is necessary and proper, they are in their nature judicial, and he is exempt from all responsibility by action, for the motives which influence him and the manner in which such duties are to be performed.”

We have here a clear, concise and intelligible definition of ministerial and judicial duties.

Applying these principles and authorities to the case at bar, we arrive at the following results:

1. That for refusal to issue the writ, the officer or members of the court authorized by law to entertain the application for it, is or are liable to an action for such refusal.

2. That the duty to issue the writ is absolute, certain and imperative.

3. That the act is not discretionary, to be exerted or withheld according to the view of the officer of what is necessary and proper.

It follows, as a corollary from these propositions, that the act of issuing this writ is purely ministerial, and in no sense judicial; and, as a consequence, it follows that the act of 1850, conferring upon the city judge all the judicial powers then possessed by the recorder, did not vest in the city judge any other than the judicial powers of the recorder, and that, if this officer possessed the ministerial power to issue the writ of habeas corpus, it did not, by the terms of this act, transfer that power to the city judge.

The judgment appealed from must be affirmed.

All concur.

Affirmed.  