Dangerfield v. Secretary of State, 1 Dallam 358

MILLS, Justice. As this is a case submitted by the parties, with no other object than the settlement of a vexed question, viz., “whether the President has the right to appoint or Congress to elect the chief justices of the several counties,” I shall briefly state my opinion upon this constitutional question. I do by no means yield to the opinion that the President or any of the heads of executive departments can be commanded by this or any other court in this Republic to answer for nonperformance of duty, nor that we can attach the “pain of contempt” to a refusal to obey such a summons.

Article 4,

section 1, saith: “The judges of supreme and inferior courts shall hold their offices for four years, be eligible to re-election,” etc. Now in my opinion it would immediately suggest itself to any mind that to take the plain meaning of this extract the question is settled. Do we speak of election when we mean appointment? Are the judges of the Supreme Court elected or appointed ? If for no other reason, I would consider that the matter was clear, inasmuch as it must certainly be a most reasonable inference. But

article 6,

section 5, of the Constitution declares that the President shall “appoint all officers whose offices are established by this Constitution, not herein otherwise provided for.” Now the question to be asked is, whether the office of chief justice is known to the Constitution? I say not—clearly not. It is a creature of the law and the law only. It is not so near as even cumulative of that instrument. ’Tis true that the tenth

section of the fourth

article of the Constitution says, “there shall be in each county a county court.” But does this create the office of chief justice? Does the office live in the court, or in the judge who presides over that court? Most undoubtedly in the judge. Suppose the act organizing the inferior courts had never been passed; would the office of chief justice ever have been created? If not, is it not clearly the creature of the law that brought it into existence? If he were only judge of probate, none could doubt.

If the Constitution had merely said, “there shall be a Supreme Court,” would any have contended that the President would have had the entire and constitutional right of appointing all the judges of that court, a law of Congress to the contrary notwithstanding? I think not. I would be the last man to strip the President of a constitutional prerogative, but I am convinced that the act organizing the inferior courts is strictly constitutional. It is therefore ordered and decreed, pro forma, that the writ of mandamus issue. Mandamus granted.