Ex parte Gist , 26 Ala. 156 ( 1855 )

CHILTON, C. J.

— The petitioner was committed to jail, and detained under a warrant of commitment for robbing the United States mail, issued by a justice of the-peace of Madison county, in conformity to the 33d section of the act of Congress approved 24th September, 1789.—1 Stat. at Large 91, § 33.

It is not denied that Congress may constitutionally pass the law for the violation of which the prisoner stands committed ; but it is insisted for the petitioner, that the 33d section of the judiciary act confers judicial power upon a State officer, in violation of section 1, article III, and the second clause of section 2, article II, of the Federal constitution.

We concede, that the power or authority conferred by this section of the judiciary act is in its nature judicial. The justice of the peace is called upon to exercise judgment and discretion : he is to judge of the sufficiency of the affidavit on which the warrant of arrest is founded; he must determine, upon the evidence adduced against the prisoner, whether there is a reasonable ground of suspicion against him, so as to require that he should be put upon trial for the offence ; and he is to imprison, or take bail for the appearance of the party at court to abide his trial.

But, although such authority involves in its exercise judicial functions, we are very clear it does not fall within the meaning of “ judicial power,” in the sense in which that term is used in the third article of the constitution.

In the distribution of powers possessed by the Federal G-overnment upon three separate bodies of magistracy, the constitution deals in general language. All its legislative powers are vested in Congress, — the executive powers in the President, — and “ the judicial power shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

It is manifest, wo think, that by the term “judicial power” is here meant that power with which the courts are to be clothed for the purpose of the trial and determining of causes. The judges of these courts are to hold their offices during good behavior ; and this “judicial power” is to extend to all “cases”, in law and equity, arising under the constitution, &c. It was not intended by the general terms hero employed to deny to the other departments the exercise of powers in their nature judicial, if essential to render the powers expressly delegated to them effectual. Hence it is, that Congress, having the power to organize the Postoffico Department, and to provide for the punishment of offenders against the laws enacted for the protection of the mail, have, as a further necessary incident, the power to provide for the arrest and safe-keeping of such offenders, until, by the exercise of the judicial power proper, on the part of the courts having jurisdiction of such cases, they are indicted and tried for the crime. So, also, although the President is the executive officer of the Govern- ' ment, he is constantly called on in the discharge of his duties to perform acts in their nature official. The same may be said of the heads of the respective departments of the Government.

We, however, deem it unnecessary to enter at length upon the discussion of the constitutional question, whether Congress may not, as a necessary and proper means for the accomplishment of an end clearly within the scope of its legitimate power, enact laws conferring powers judicial in their nature upon State magistrates. This right has been recognized by every department of the Government ever since tho adoption of the Federal constitution, has received, on more occasions than one, the solemn sanction of the Supreme Court of the United States, and has virtually been affirmed by the Supreme Court of this State. The act under consideration was passed at the first session of Congress after the adoption of the constitution, and has remained upon the statute book until the present. It was followed by another act of the 12th February, 1793, which authorized State magistrates to give a certificate for the extradition of fugitives from labor, or fugitive slavey This latter act was called in question, and the power of Congress to pass such laws was closely scrutinized by learned counsel, in the great case of Prigg v. The Commonwealth of Pennsylvania, 16 Peters 539 ; and the court there held the following language : “As to the authority so conferred upon State magistrates, while a difference of opinion has existed, and may still exist, on the point, in different States, whether State magistrates arc bound to act under it, none is entertained by this court that State magistrates may, if they choose, exerdse that authority, unless “prohibited by State legislation

So, in Moore v. The People of Illinois, (14 How.), this case is virtually re-affirmed; and in The United States v. Ferriera (13 ib. 48), Chief Justice Taney, speaking of the powers conferred upon certain officers under vthe treaty with Spain of 1819, said : “ The powers conferred by Congress upon the judge, as well as the secretary, are, it is true, judicial in their nature ; for judgment and discretion must be exercised by both of them. But it' is not judicial in either case, in the sense in which judicial power is granted by the constitution to the courts of the United States.”

The same doctrine received further consideration in the matter of Kane (14 How. 103) ; and although the Supreme Court was divided upon the question of jurisdiction which that court possessed over the case as made by the petitioner, it appears that all1 the judges conceded the constitutional right of Congress to pass the law in question, vesting powers judicial in their nature in officers, to be exercised by them not sitting in the capacity of courts of the United States.

So likewise, in our own court,, in the case of Gaines v. Harvin (19 Ala. 491-8), a similar provision in our State constitution came under review ; and we there held, that it was not the intention of the framers of the constitution to deny to the Legislature the power to confide to ministerial officers, who do not constitute a part of the judiciary properly so called, many duties involving inquiries in their nature judicial. It was said: “The practice of this, as of all other governments having their judicial, executive and legislative departments separate and distinct, very clearly shows that, in the administration of the laws, inquiries .partaking of the nature of ju-Ricial investigations are confided to persons other than judges, whose acts have never been questioned on constitutional grounds.” ■

As the question before us is not whether Congress, acting within the sphere prescribed by the constitution, has the power to provide for the arrest and commitment of offenders against the criminal laws of the United States, but merely whether, under the clause of the constitution above alluded to, this power has been properly exercised, the same rules of construction which would apply to a similar provision in our State constitution would apply to the article under consideration.

But to conclude: The act in question was passed by the first Congress which assembled after the adoption of the constitution. The government was then principally administered by those who had framed that instrument. It must bo regarded as a contemporaneous legislative exposition of the constitution, made after very mature deliberation and discussion. It has been acquiesced in ever since, and has been repeatedly recognized as a valid law by every department of the government; and if any question should be considered as put to rest by long acquiescence, contemporaneous expositions, and extensive and uniform recognition of its validity, the one before us would certainly fall within that category ; and if we were doubtful as to the constitutionality of this law, these considerations would go far, if indeed we should not be required under the decisions of the Supreme Court of the United States, 'to determine in favor of its validity.—Stuart v. Laird 1 Cranch 299; Martin v. Hunter, 1 Wheat. 204; Cohen v. Commonwealth of Virginia, 6 ib. 264; Prigg v. The Commonwealth of Pennsylvania, 16 Peters 621.

There is nothing in the objection that the exercise of this power makes the justice a Federal officer within the meaning of the second clause of the second section of article II of the constitution. He renders a voluntary service, and in an enlarged sense is, pro hac vice, an officer, but not one within the meaning of the clause above referred to. He is an officer of the State, and permitted by the State to aid the Federal Government in securing offenders against the criminal laws of the Union, so that they may be brought to trial before the Federal courts : and this power, we are of opinion, he may constitutionally exercise.

The petitioner having shown that he is not entitled to the relief which he seeks, the application for habeas corpus and certiorari must be overruled, with costs.