Respublica against Alexander James Dallas, esquire, 3 Yeates 300

This term, Shippen C. J. pronounced the unanimous opinion of the court. The question is, whether the defendant can legally hold the office of the recorder of the city of Philadelphia, at the same time that he holds the office of district attorney for the eastern district of Pennsylvania, under the United States ? The words of the 8th

section of the 2d

article of the constitution are these : “No member of congress, from this state, nor “ any person holding or exercising any office of trust or profit “under the United States, shall, at the same time, hold or exercise the office of judge, secretary, treasurer, prothonotary, “ register of wills, recorder of deeds, sheriff, or any office in “ this state, to which a salary is by law annexed, or any other “office, which future legislatures shall declare incompatible with “the offices or appointments under the United States.” It is conceded by the pleadings, that Mr.

Dallas holds and exercises an office of trust and profit under the Unitéd States. The question then is, whether the office of recorder of the city of Philadelphia is an office prohibited by the constitution to be exercised by one holding such an office under the United States. The affirmative of this question is held by the counsel on the part of the relators, who contended, that the recorder of the city is a judge within the words and meaning of the framers of the constitution.

The motion was opposed, chiefly on two grounds; 1st, that the office of recorder is not strictly that of a judge, but of an adviser and mouth of the corporation; and 2dly, that if he is strictly a judge, he is not such a judge as was contemplated by the constitution in the prohibition.

As to the first question, we think there can be no doubt, but that in the strict legal sense of the word, the recorder is a judge; he is a justice of the peace; he is a constituent and principal member of a court of record, empowered to hear, try and determine by a solemn judgment, a number of criminal offenders against the laws and peace of the commonwealth. Lord Chief Justice Holt, in 1 Salk. 200, is made to say, wherever a power *is given to examine, hear and punish, it is a judicial [*315 power, and they in whom it is reposed, act as judges.

Much has been said to investigate the origin and nature of the office of recorder of the city of London ; but whatever other power that recorder may possess, it seems impossible to say, when he sits in a court of record to administer justice, and to hear and determine questions of law and fact, that he is not in that capacity a judge. In 1 Bac.

Abr. 657, said to be written by Lord Chief Baron Gilbert, it is expressly said, that in the Court of Hustings at Guildhall, before the lord mayor and sheriffs, when any matter is to be argued and determined, the recorder sits as judge with the mayor and sheriffs, and gives rules and judgments therein. The more doubtful question in the present case is, whether the recorder is such a judge as the constitution meant to prohibit from holding at the same time, an office of trust or profit under the United States. It is not easy to get at the real meaning of a deliberative body.

Some of its members may have meant by the same words very differently from others ; even their debates and minutes afford frequently very uncertain lights, and are therefore not to be relied on. The only true and legal way of judging, is from the words of the instrument taken. all. together, which they finally agree upon.

The general operative motive which induced the convention to adopt any disqualification of the nature of the present, seems to have arisen from an apprehension of a possible collision, between the general and state governments, and a jealousy lest the admission of their officers into our places of trust and power, might lead to a possible preference in the minds of those who might hold offices under both, in favour of the general government, to the prejudice of the state government. Whether this was a reasonable or unreasonable jealousy, it is not our business to examine.

They have not, however, extended it to all state officers. The question before us is, whether there are any words or expressions in the instrument, indicative of their intention either to extend the word judges to all, who in strictness of law come under that denomination, or to restrain it to judges of a particular class. In considering this question, we acknowledge-our judgments have vibrated between two opinions. We have, however, at length made up our minds to the best of our understandings, and we hope without prejudice or partiality.

From the generality of the word judge, used in the constitution, without any limitation or exception whatever, and from supposing that the *mischiefs intended to be prevented by the jorohibition, *316] extended equally to the case of every judge, we were at first strongly inclined to the opinion, that every judicial officer was included in the prohibition: but on further consideration, and analysing such parts of the instrument as relate to this subject, our opinions preponderate in favour of the, contrary construction, that the recorder of the city court is not included in the prohibition.

Our reasons are these : — First, justices of the peace, a part of the judiciary power, although a numerous body of men dispersed throughout the state, and particularly designated by that name, are not eo nomine included in the prohibition, for which I cannot account, but on the presumption that they were not intended to be included in it, and of course that every judicial power was not intended to be included. The Courts of Quarter Sessions for each county, by the 5th

article of the same constitution, are made part of the judicial power of the state, and yet are not expressly included. The city court is not mentioned in the 5 th

article as part of the judicial power of the state, much less, therefore, can that court, or its members, be supposed to be in-eluded in it.

Again, not only some of the judicial characters, as justices of the peace, are omitted in the prohibition, but others, as registers of wills, although as constituting a part of the Register’s Court, they are declared to be part of the judicial power of the state, are particularly included in the prohibition, shewing the sense of the convention, that every person exercising judicial power was not intended to be included under the word jtidge, otherwise it would have been nugatory to have expressly included the registers.

Again, the word judge in the constitution is immediately followed by the words, secretary and treasurer. These can only mean secretary of the state and treasurer of the commonwealth, and with no appearance of reason can be supposed to mean the secretary and treasurer of every corporate body within the state. If then, these general descriptions are to be restrained, and the constitution does not mean to include every judicial character in the state, what is the restriction most consonant to the general tenor of the instrument, with respect to the word judge?

The convention in other parts of their instrument, have expressly denominated certain judicial officers by the appropriate name of judges, namely, the judges of the Supreme Court, and judges of the Courts of Common Pleas, and no others ; and the subsisting laws of the state have denominated the judges of the High Court of Errors and Appeals and no others by that name ; and all these being about ninety in number when the new constitution was *framed, are generally and exclusively styled judges by ^ the people, in contradistinction to all others who exercise [*317 judicial powers, from whence we are induced to conclude, that the word jiidge in the constitution was intended to be confined to such judges only as were thus distinguished by the constitution, the existing laws of the state and general language of the country.

It is evident, it was considered there were other characters who might in future be thought proper to be included in the prohibition. It was therefore left to future legislatures to declare what other offices than those enumerated, should be incompatible with appointments under the United States. Referred to in 17 S. & R. 233. Cited in 65 Pa. 83 to show that a recorder is a judge of a court of record.' In consequence of the decision of Respublica v.

Dallas the act of Feb. 12, 1802, was passed declaring that any person who shall hold any office or appointment of profit or trust under the United States, shall be incapable of holding at the same time, the office of justice of the peace, mayor, recorder, etc. In addition to what I have said, I would here cite by way of illustration, a case which bears in some respects upon both the points, Dr. Greenvelt v. Dr. Burnel and others, in Carth. 491.

It was an action of , assault, battery and false imprisonment, brought against the defendants as censors of the college of physicians, who had fined and imprisoned the plaintiff for mal-prac-tice as a physician. Lord Chief Justice Holt said, that the defendants were not punishable for what they did by virtue of their judicial power, and he laid it down for a ground, that wherever a statute gives a power to fine and imprison, the persons to whom such power is given, are judges of record, and their court is a court of record.

I would then ask, whether if such a court of physicians had existed in this state, would they, because they are called judges of record, have been included in the prohibition under the word judge in the constitution ? I conclude not. Upon the whole, we are of opinion that judgment be rendered for the defendant.