This court consists of eight judges, four of whom are selected from the class of justices of the supreme court having the shortest time to serve. (Const., art. 6, § 2.) By the 6th section of the same article, a justice of the supreme court, not a judge of the court of appeals, is to be designated to preside at general terms. Three or more of the justices, of whom one must be a presiding justice, form a supreme court at general term; one or more hold circuits and special terms, and preside in courts of oyer and terminer. Section 13 provides for filling vacancies. The judiciary act, which set the courts in motion, is conformable to the constitution in regard to their organization; and, among other things, provides for the selection of justices of the supreme court to be judges of the court of appeals. (Laws of 1847, 320, § 6.)
It is insisted on the part of the plaintiff in error, that a justice of the supreme court, on taking his seat in this court, becomes a judge of this court, and his powers as a justice of the supreme court are lost or suspended. I find nothing in the constitution or judiciary act to that effect. He takes no additional oath as a judge of the court of appeals, any more than the justices of the former supreme court did when they took their seats in the court for the correction of errors; nor did the latter take an additional oath of office when they happened to sit in a court of oyer and terminer. In one-half of the districts the justice having the shortest time to serve is in the court of appeals during the seventh year of his term; and he is back again in the supreme court during *Page 77 his last year. During the time one of those justices sits here, he may be a member of the court for the trial of impeachments, for he is no doubt for that purpose a judge of this court, and as such is a member of that court. (Art. 6, § 1.) The constitution provides that the members of that court shall, before the trial of an impeachment case, take an oath to try the same truly and impartially; but as every member takes this oath, no presumption arises in favor of the plaintiff in error from that circumstance, even if that can be considered in the nature of an oath of office.
I find nothing in the constitution that strips a justice of the supreme court of that character while sitting here. To that office he was elected and into that he was sworn; and there is no prohibition against his acting as such at all times, except in the single instance of presiding at general term; and that exception is an implied admission that he may, or direction that he shall, perform all other duties when he has time to do so, the exception proving the rule.
If he is not still a justice of the supreme court and capable of sitting as such, what necessity of precluding him from presiding in that court. The language is, "one or more of said justices who is not a judge of the court of appeals." (Const.,art. 6, § 6.) This language is senseless, or at least supererogatory, if he is not still a justice of the supreme court. By force of the constitution and a designation under the statute, he becomes ex officio a judge of the court of appeals for one year; but there is nothing in the constitution or the statutes, that expressly or by implication takes from him his general powers as a justice of the supreme court; no disqualifying clause. And this view is strengthened by the debates of the convention to revise the constitution, if they should be allowed to influence our construction, and the practice since the constitution was adopted; and there is nothing inconsistent in the performance *Page 78 of the duties of both courts, those in this, of course, being of paramount importance.
I think the judgment must be affirmed.
Judgment accordingly.