There are two questions presented in this case. One, whether the city judge has power to issue the writ of habeas corpus, and the other whether, if he has that power, he has made a correct decision in discharging the prisoner.
The power depends upon the construction to be given to the words “judicial powers,” contained in the act of 1850, creating the office of city judge. The portion of the act which confers on the city judge his powers and defines his duties is as follows: “ All judicial powers vested by law in the recorder of the city of Hew York, are hereby conferred on such city judge, and said city judge shall, concurrently with
How, the only power which the recorder has to issue a habeas corpus is derived from the statute making him a Supreme Court commissioner. (2 R. S., p. 281, § 35.) By 2 Revised Statutes (p. 281, § 20), a Supreme Court commissioner had the duties of a justice of' the Supreme Court at Chambers, under certain limitations, which do not affect this question. By the habeas corpus provisions, application for the writ might be made to any officer authorized to perform the duties of a justice of the Supreme Court at Chambers. (2 R. S., p. 564, § 37.) Shortly, thus: Any officer authorized to perform the duties of a justice of. the Supreme Court at Chambers might issue the writ; a Supreme Court commissioner was authorized to perform such duties; the recorder was a Supreme Court commissioner, and, by virtue of being such, might issue the writ. It follows that the power and authority of the recorder is precisely that of a Supreme Court judge at Chambers.
It will now be considered whether there is any distinction between the term “ Chatnbers,” and the term “ vacation.” They are, in fact, convertible terms. Everything that can be done at Chambers can be done in vacation; and, on the other hand, everything that can be done in vacation can be done at Chambers. There can be no distinction made where the powers and duties are identically the same. The power of the recorder to issue a habeas corpus is, consequently, the same as that of a Supreme Court judge in vacation.
In the year 1810, Chief Justice Kent, in the case of Yates v. Lansing (5 Johns. R., 282), enunciated the doctrine that the allowance of the writ of habeas corpus in vacation is not a judicial act, but a ministerial one. If this doctrine is sound, it disposes of the case. Chief Justice Kent, at the time he enunciated the doctrine, had in view that one of the habeas corpus provisions which imposed a penalty for refusing to issue the writ; and he appears to base the doctrine on the principle that when the statute imposes the performance of an act in favor of a party upon a petition being presented drawn in conform
The provisions of the statute are so framed as to render it scarcely within the bounds of possibility that the officer could make any mistake as to whether the prerequisites had been complied with; and then to make him liable, in all cases, to the penalty for a refusal to issue the writ, unless he could, when sued, make it appear, to the satisfaction of the court before
But this species of judgment is not that free and untrammeled exercise of judgment which appertains and is essential to a judicial power. Nor does the fact that judges and courts are empowered to issue the writ necessarily make it a judicial power; for there can be no doubt that the performance of an act, clearly ministerial in itself, may be imposed on a judge. The fact that a judge is selected as the minister to perform a ministerial act cannot change the nature of the act: that will remain the same as if a coroner or constable had been selected. There is no reason for dissenting from the principle laid down by Chief Justice Kent.
Having thus come to the conclusion that the power of the recorder to issue a habeas corpus is ministerial, it follows that it does not pass to the city judge under the term “judicial .powers.”
Upon the other question, the commitment is in the form sanctioned by authority, and is, on principle, amply sufficient.
The discharge must be vacated, and the prisoner remanded on the temporary commitment.
The act of 1850 (Laws of 1850, p. 388, § 3), creating the office of city judge in the city and county of New York, confers upon this officer all judicial powers vested by
Is the power to issue a writ of habeas corpus to inquire into the cause of a person’s commitment, detention or restraint of liberty, a judicial power? Undoubtedly, it is a power which is intimately connected with the administration of justice, and .so are all the various powers possessed and exercised by the numerous officers of every court of justice. The issuing of many writs and processes is vested in clerks and prothonotaries; and the power is purely ministerial. No power is judicial that does not imply discretion—the right to grant or refuse, according to what the officer deems right or just, and in conformity to the laws of the land. But the writ of habeas corpus, whether applied for in or out of court, has now become a writ of right; and, “if any court or officer, authorized to grant writs of habeas corpus, shall refuse to grant such writ, when legally applied for, every member of such court who shall have assented to such refusal, and every officer, shall severally forfeit to the party aggrieved one thousand dollars.” (3 R. S., 5th ed., p. 885, § 46.) As the law stood before the revision of 1830, when the application was made to the court, the members were not liable to this penalty: it attached only to those judges who refused to grant the writ in “ the vacation time.” (1 R. L., p. 355, § 4.) Consequently, in Yates v. Lansing (5 Johns. R., 282), the court decided that, when the application was made to the court,_ they acted judicially, and were not liable to the penalty; but when it was made to a judge in vacation, or out of court, he acted ministerially, and was liable. Kent, Ch. J., says: “The penalty to which the chancellor and judges are
The act of 1850, creating the office of city judge, having e conferred on him only the judicial powers vested in the recorder, he cannot exercise powers that are not judicial, and which are purely ministerial. In doing so, he attempts to stretch his authority beyond the limits which the statute prescribes.
The proceedings before the city judge should be set aside, and the relator, Louisa Nash, should be remanded on the temporary commitment.
Discharge vacated, and prisoner remanded.