Morrison v. McDonald
Samuel Morrison versus John McDonald & al.
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Opinion of the Court
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The opinion of the Court was drawn up by Whitman C. J.
— This case comes before us upon exceptions taken to the order of the Judge, nonsuiting the plaintiff at the trial, for defect of evidence introduced by him in support of his action, which was trespass for false imprisonment. The plaintiff, until immediately before the trespass complained of, had been Recorder of the Municipal Court at Bangor, of which the defendant, McDonald, was Judge; and of which the defendant, Prescott, claimed to have been duly appointed as the plaintiff’s successor, exhibiting, at the same time, due notice to the plaintiff that he had been thus removed and superseded. *555 The plaintiff, nevertheless, insisted, that he had not, and could not by law have been so superseded. The Judge, McDonald, thinking otherwise, directed him to retire from the office, and to desist from exercising its duties; and upon his refusal caused a mittimus to be issued, on which the plaintiff was committed to prison as and for a contempt of Court.
The first question made by the counsel for the plaintiff is, whether the office of Recorder is a judicial office or not; he contending that it is such, and therefore not within the provision of the Constitution, Art. 9, <§> 6, which is, that “ the tenure of all offices, which are not, or shall not otherwise be provided for, shall be during the pleasure of the Governor and Council.”
The ground assumed is, that the Recorder, in the absence of the Judge, being clothed with the same powers as the Judge himself is when present, is a judicial officer, and therefore within the description of the Constitution, as it then was, Art. 6, § 4; which provided, that “all judicial officers, except justices of the peace, shall hold their offices during good behaviour ; but not beyond the age of seventy years.” The tenure of the office of Recorder as to duration, is not prescribed in the act constituting the office. The appointment in this case was for the term of four years, unless sooner removed by the Governor and Council. This appointment, therefore, was not as a judicial officer, and if a Recorder be such, the appointment was not according to the Constitution, and therefore might not be valid.
But we cannot bring our minds to the conclusion that a Recorder is, in the sense contemplated in the Constitution, a judicial officer. It seems evident, that the framers of that instrument had in view those, who to a general intent and purpose were such, and not those who were incidentally and casually entrusted with the exercise of some attribute of a judicial character.
The instances are numerous in which individuals are expected, in connexion with the chief business, characterizing the duties of their appointments, which in the main is in no *556 wise judicial, to exercise, as incident thereto, casually, some judicial power. Take, for instance, the Senate of the State. That body has judicial powers, in cases of impeachment, but it never occurred to any one that its members were to be deemed judicial officers. The great body of their powers is wholly foreign to any thing of a judicial cast; and they never could .have been viewed as judicial officers. Auditors and masters in chancery, in connexion with their ministerial duties, perform sundry acts of a judicial nature. So do the assessors of taxes of our municipal corporations; and commissioners on insolvent estates; and commissioners to adjust controversies for the damage occasioned by flowing lands, under the act concerning [mills, &c; and to make partition of real estate. And, in this connexion, .the case of County Commissioners may well be referred to, although i.t may be believed, that no one would have been surprised, if the legislature had admitted them to be within the purview of the constitutional provision; especially since it has deemed' it proper to authorize an appeal, in all cases, in which there can be any litigation before them, between parties, to this Court; when, whatever may be done in the matter of such appeals must be admitted to be of a judicial nature.
If County Commissioners are not to be denominated judicial officers, surely the Recorders of Municipal Courts cannot be.
The next branch of inquiry, presented by the plaintiff, under the exceptions, is as to the authority of the Municipal Court to proceed in the manner it did, to cause him to be imprisoned for a contempt of Court. The Municipal Court of Bangor is a court of record. The power to commit for contempt is incident to all such courts. The plaintiff, who must be regarded as having been duly removed from the office of Recorder, must be admitted to have committed a contempt, by persisting, after full and authentic information, that he had been so removed, in exercising the duties of the office; es^ pecially after being ordered by the Judge, to desist therefrom. The Judge clearly had jurisdiction of the subject matter of a commitment in the case. But it is contended, that he did not *557 proceed regularly in the exercise of such power. It may be that he did not. All the evidence of his proceedings, which the case presents, is contained in the mittimus, by which the plaintiff was committed to prison. Whether there was any record, upon which that instrument was grounded, does not appear. If the plaintiff had not been nonsuited upon his opening, the defendants might have introduced their record of the conviction and sentence. It seems from the mittimus, that the plaintiff, not finding sureties, was ordered to bo detained in prison till discharged by due course of law. What sureties he had or could have been ordered to find, or for what purpose, does not appear. And finally there does not seem to be much reason to doubt that there was irregularity in the proceeding of the Court in the affair. But, after all, is the Judge, and his Recorder, who must stand or fall with him, amenable to the plaintiff in this action, on account thereof?
The cases tending to show that they are not, are numerous. Giverwelt v. Burwell al., 1 Salk. 396, and cases there cited; case of J. V. N. Yates, 4 Johns. 317 ; Yates v. Lansing, 5 Johns. 282 . In Hammond v. Howell, 1 Mod. 184, the Court say, in very emphatic terms, that no action will lie against a Judge for a wrongful commitment, any more than for an erroneous judgment.
In the cases of Yates , and Yates and Lansing , before cited, in the Supreme Court, and Court of Errors, in New York, the learning upon this subject was entirely exhausted. And although the Court of Errors of that State was of opinion, that Lansing, as Chancellor of the State, had no authority to commit Yates, for the cause, and in the manner he did; yet they held, that the latter could not sustain an action against him therefor.
Exceptions overruled and nonsuit confirmed,
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