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. *Page 608
It was not a power which belonged to the office of recorderper 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 corpus," and 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the purview of revised acts of similar titles passed at the thirty-sixth session of the legislature in 1813, and were repealed by the general repealing act passed April 13th, 1813, and entitled, "An act to repeal the acts and parts of acts therein mentioned." And these two revised acts of 1813 were, on the revision of the statutes in 1828, themselves repealed by the general repealing act passed December 10, 1828.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 Revised 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. *Page 609
It was held in Renard v. Hargous (3 Kern., 259), that the powers which the judges of the Superior Court exercised as exofficio 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 thecourt 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.