McCarron v. People

By the Court, Pratt, J.

constitution in creating and organizing the Court of Appeals, provides that it shall be composed of eight judges, four of whom shall, be elected by the people directly, as judges of that court; and four shall be selected from the class of justices of the Supreme Court having the shortest time to serve. The judiciary act provides that the justices of the Supreme Court, selected to be judges of the Court of Appeals, shall enter upon their duties as such judges on the first day of January, and serve as such one year. It is *192insisted on the part of the plaintiff in error, that during such year, the justice of the Supreme Court, thus selected, has no jurisdiction to perform any of the duties of a justice of the Supreme Court; that during the time he is authorized to act as judge of the Court of Appeals, his powers as a justice of the Supreme Court are suspended. I do not find any authority for this proposition, either in the constitution or statutes of the state.

■ First.—It is "as justice of "the Supreme Court, that he is entitled to act as judge of the Court of Appeals. To sit as judge of that court during the year designated by the statute, is as clearly one of the duties Cast upon him as a justice of the Supreme Court, as to preside in a Court of Oyer and Terminer. The one is a court superior and the other inferior to the Supreme Court; but the constitution and statutes make it, nevertheless, the duty of justices of the Supreme Court, under certain circumstances, to act as judges in either court, and the performance of such duty does not suspend or impair their jurisdiction to perform the other duties which the law imposes upon them. Although judge of the Court of Appeals, he does not cease to be justice of the Supreme Court, with all the powers attached to that office, and amenable to the laws as such. His power to act as judge of the former court is one of the attributes of the office of justice of the Supreme Court. Suppose he should resign while thus acting as judge of the .Court of Appeals! He could not resign that office, because that is not the office which he holds or to which he was elected, but simply a, duty pertaining to his office. He must resign, if at all, the office of justice of the Supreme Court, and that would carry with it the right to sit as judge of the Court of Appeals. So, in filling, the vacancy, the governor would not appoint a judge of the Court of Appeals, but a justice of the Supreme Court, and after qualifying as such, the appointee might take his seat in the former court.

Again: he could not be impeached as judge of the Court of Appeals. He might as well be impeached as a judge of a court of Oyer and Terminer. If impeached at all, he must be *193impeached as a justice of the Supreme Court, although the particular dereliction in office specified might be mal-conduct as judge of the Court of Appeals or as judge of a court of Oyer and Terminer.

In fine, he takes the oath of office as justice of the Supreme Court, receives his salary as such, and all the powers and duties conferred upon him, in whatever court to be performed, are powers and duties appertaining to that office. They rest upon him so long as he holds that office, and no longer; and I do not perceivé how the discharge of the one affects the jurisdiction to discharge the others. They are simply an accumulation of duties cast upon a class of public officers by the law, somewhat various and diversified in their nature and character, but not necessarily inconsistent' with each other.

Secondly.—The language of the constitution, prescribing the various duties of Justices of the Supreme Court, raises a strong implication that it was not the design of the framers of that instrument that their ordinary powers should be suspended while acting as judges of the Court of Appeals: provision may be made by law for designating, from time to time, one or more of the said justices, who is not a judge of the Court of Appeals, to preside at the general terms of the said court to be held in the several districts. Any three or more of the said justices, of whom one of the said justies so designated shall always be one, may hold such general terms. And any one or more of the justices may hold special terms and Circuit Courts, and any one of them may preside in courts of Oyer and Terminer.” (Constitution, art. VI. sec. 6.)

By this section, the presiding justices at general terms in the Supreme Court, are not to be judges of the Court of Appeals; but no restriction or limitation is imposed in regard to the performance of any other duty. “ Any one of them may preside in courts of Oyer and Terminer.” The broad terms here used in connection with the restriction, in regard to the justices who are to preside at general terms, precludes the idea that the same restriction was designed to be extended to jus*194tices presiding in courts of Oyér and Terminer. Expressio unius est exclusio alterius.

Thirdly.—This limitation of power is clearly not found in the general scope of the constitution, as developed in the powers and duties appertaining to other judicial officers. The judges of the Court of Appeals are also judges of the court for the trial of impeachments, when that court is in.session; yet they do not, while acting as judges of the latter court, lose any of their powers as judges ol the former court. Neither do the senators, while acting judges of that court, cease to be senators.

County judges are not only judges of the County Courts, in their respective counties, but they are judges in the courts of Oyer and Terminer and of Sessions in their counties, and in some counties surrogates. The discharge of judicial duty in one court, by no means suspends their power to act as judges' of other courts.

An example, still more anal'agous, may be found in the selection of justices of the peace, through the medium of an election to act as judges of the courts of Oyer and Terminer and of Sessions in the several counties. . Although, by this selection, they become in name and in fact, judges in those courts, still their power to act as justices of the peace and to hold justice’s courts, is not thereby suspended. Various other examples might be cited, both under the old constitution and the new, of judicial officers being required to act as judges in different courts; but I have been unable to find any case in which the performance of duty in one capacity, suspends the power to act in others, in the absence of any special provision limiting their powers.

It is evident, therefore, that a justice of the Supreme Court, while a judge of the Court of Appeals, is not deprived of . his jurisdiction to preside in a court of Oyer and Terminér, or to discharge any of the ordinary duties 'appertaining to that office. The judgment of the court of Oyér and Terminer must be affirmed.