34 Ky. 522 | Ky. Ct. App. | 1836
delivered the Opinion of ihe Court.
The City Court of Louisville, organized under an act of assembly approved February 22ad, 1836, having adjudged against Francis Tesh a fine of fifty dollars, assessed by a petit jury, on an indictment for assault and battery, found against him by a grand jury empanneled by the authority of the same court, he prosecutes this appeal; and insists that the judgment is invalid and erroneous, be.cause: (1.) the court which rendered it, is unconstitutional; (2.) if constitutional, it had no jurisdiction over the case; (3.) there was no ministerial officer legally authorized to summon the juries; and (4.) there was no legally appointed prosecuting attorney.
These objections will be severally, and very briefly, considered in the order in which they are stated.
First. The judicial power of this Commonwealth is vested in a Supreme Court established by the constitution, “and in such inferior courts as the General Assembly “ may from time to time, erect and establish.” (Sec. I. Art. 4.) “The Judges both of the supreme and inferior courts “ shall hold their offices during good behaviour.”—(Sec. III. Art. 4.)—uand (during) the continuance of their re“speciive courts.” (Sec. XIS. Art. 6.)
The second section of an act of the 22nd February, 1836, established a police court in the city, of Louisville, “to be styled the City Court of Louisville,” to “be held by a single judge, to be appointed as other judicial officers of the State;” and the third section, among other things, gives that court jurisdiction, concurrently with the Jefferson Circuit Court, “of all pleas of the “ Commonwealth arising within the city of Louisville, except felony.” And the twelfth section limits the ox
There can be no objection to the constitutionality of the City Court of Louisville which can, in any degree, be plausible, unless it be that which has been urged in this case: that is, that the Legislature had no power to limit the duration of the court.
But that objection cannot prevail. A court established by legislation may be abolished by legislation. The Courts of Appeals, being ordained and established by the constitution, cannot be abolished by any other power than that of the people in convention. But all inferior courts, being created by the Legislature, must depend, for the continuance of their existence, on legislar live will. And, as the Legislature may repeal an act establishing an inferior court for an indefinite period, it would, we think, be difficult to prove that the same power may not, in the first instance, prescribe a limitation to the existence of such a court. Judges, holding their offices during good behaviour and the continuance of their respective courts, though appointed to hold during good behaviour, cannot, of course, be in office when there is no office. And, even if they had a right to hold commissions during good behaviour, notwithstanding a constitutional abolition of the office, all that could be said would be, that they would be entitled to all the rights and privileges guarantied to them by the constitution, and that, therefore, they would be judges without jurisdiction or judicial power or duty of any kind. And such a dilemma would not prove that a limitation to the office would be void. But if it could reasonably lead to such deduction, the consequence would be, that the existence of the court would be unlimited, except by the. discretion or life of the incumbent, and could never be. terminated as long as he might please to object. And, even in that view, a void limitation would not make the. office itself void.
Whatever may be thought, therefore, of- the policy of ■ limiting the duration of inferior courts, we cannot doubt the legislative power to do it; and are therefore clearly
Second. Nor can we doubt that the City Court had jurisdiction over this case, for it was “a plea of the Commonwealth arising” in the city. The objection made, under this head, in argument, is that the statute, properly construed, does not mean that the court may have, concurrent jurisdiction over penal offences committed within the cityr, but means only that it may take cognizance of all penal cases instituted there, without regard to the. place where the offence may have been committed; and therefore the statute is unconstitutional, in that respect. Such an interpretation is altogether indefensibie. But were it maintainable, nevertheless, as the battery charged against Tesh was committed in Louisville, the City Court had undoubted jurisdiction—whether “pleas”—“arising”—&c. mean offences committed in Louisville, or prosecutions instituted there for offences commit" ted any where.
Third. The tenth section of the statute authorizes, the Mayor and Council of Louisville to appoint a city Marshal; and the fifth section provides that all process from the city court, “shall be directed to and executed “by the Marshal of the said city;” and also, declares that “the judge of said court, for special cause, may “ direct the process of said court to any sheriff, deputy “ sheriff, constable, or other discreet person.”
In this case it appears, that the judge, doubting the power of the Legislature, to authorize the permanent appointment of an executive officer of the court otherwise than according to the mode prescribed by the constitution for the appointment of sheriffs, made an order directing process ’to the, sheriff and deputy sheriffs of Jefferson; anda deputy, who was also the city marshal, officiated in this case. But the counsel for the appellant insists, that the cause for directing the process to the sheriff was not a “special cause,” and that, therefore, that officer had no authority to act; and consequently, that the, judgment was illegal, for the want of a proper officer to summons the grand jury and venire.
\Ye do not doub.t the pouter of the Legislature to au
But the city authorities have, by its charter, power, to appoint a city marshal. And there being nothing in the constitution requiring a court of justice to employ a sheriff or any other official agent as its executive minister, we cannot doubt the power of the Legislature, to authorize a court to select its own agent, or the power to designate for it, some other than a sheriff; and therefore we are clearly of the opinion, that the city marshal had, in this case, authority to act for the court, in all respects, as a sheriff. We cannot feel therefore that there is any solidity in the third objection to the judgment.
Fourth. Nor have we been able to perceive the imagined reasonableness of the last objection.
The ninth section of the third article of the constitution declares, that the Governor “shall nominate, and, by and with the consent of the senate, appoint all officers “ whose offices are established by this constitution, or
And the twenty-third section of the same article contains the following declaration: “an attorney general, and “ such other attorneys for the Commonwealth as may be “ necessary, shall be appointed: whose (duty shall be reg- “ ulated by law. Attorneys for the Commonwealth, for “ the several counties, shall be appointed by the respec- “ tive courts having jurisdiction therein.”
County attorneys may, according to the constitution, be appointed by the County Courts, or, in other words, “the courts having jurisdiction therein.” In addition to the twenty-third section, which has been quoted, a proviso in the ninth section, also before quoted, authorizes the County Courts to appoint constables and “such oth-' “ er inferior officers whose jurisdiction may be confined “ within the limits of a county.”
The true import of the twenty-third section is not perfectly clear. It contemplates, in addition to an Attorney General, two distinct classes of “Attorneys for the Commonwealthone class to be appointed for each county, by the court thereof, and without any legislative injunction or authorization; and another class to be provided for by the legislative discretion, and to be appointed, of course, (when so provided for j) by the Governor and Senate. Whether the court of each county, and the attorney for each county, were intended to mean only the “County Courts” and ‘iCounty Attorneys” (or attorneys of these courts,) and how far the two classes of “ Attorneys for the Commonwealth” differ, are questions respecting which the constitution is not unambiguous. It is our opinion, however, that attorneys for the county courts, to be appointed by those courts exclusively, constitute one class; and that attorneys for the Commonwealth, for superior courts of more general, criminal jurisdiction, belong to the other class. But there may be room for some doubt whether these latter commonwealth’s attorneyships be offices established by the constitution. If they be, then, not only can they never be abolished or cease to exist, as long as the constitution shall remain unchanged,
The constitution established a Court of Appeals and an Attorney Generalship; but it did not establish inferior courts, although it evidently contemplated the existence of such tribunals; and, for a parallel reason, we may infer that, though it contemplated such offices as those of attorneys for the Commonwealth to be nominated and commissioned by the Governor, it left the creation of them to legislative discretion, from time to time. “Such other attorneys for the Commonwealth as may be necessary,” implies that the Legislature shall determine whether any, and, if any, how many are necessary before there can be any such existing office as that of such attorneys for the Common'wealth. And it is obvious that the Governor could not commission any such attorneys, without the authority of some previous legislation. And hence we infer—as was virtually decided in Bruce vs. Fox (1 Dana 447)—that the duration, as well as existence, of such an office depends on legislative will.
Nevertheless, when the office of such attorney for the Commonwealth shall have been established by law, the incumbent can be permanently appointed by the Governor and Senate only. And, as Louisville is not a county, nor its city court a court of a county, or a county court, the judge of that court derives no power from the twenty-third section of the constitution (supra) to appoint an attorney for the Commonwealth.
But there is no such office as that of Attorney for the Commonwealth for the City Court of Louisville. A Circuit Court attorney is no more the attorney of the Commonwealth for the special city court, than for the county court of Jeffei’son.
Nor lias the act establishing the City Court of Louisville established, also, the office of attorney for the Corn
Besides, had no mode been prescribed for appointing a prosecuting attorney, the court itself, charged with criminal jurisdiction, would have had the inherent power, ex officio, to appoint a fit person to represent the Commonwealth, and any person, acting under such authority, would act as legally and effectually as if he had been commissioned by the Governor. Fof many years, when there was no law requiring the appointment of attorneys for the Commonwealth, or prescribing the mode of appointing them, the courts made appointments at pleasure and without question or com. plaint. And even now, it is not doubted that, in the absence of the commissioned attorney for the commonwealth, a Circuit Judge may appoint a substitute ad interim; and the legal authority of such a Zocum lenens has never been seriously questioned or doubted.
In this case, the attorney who prosecuted for the Commonwealth had been áppoihted by the cou.rt, and employed also by the mayor and council of Louisville. And we have no doubt, therefore, that his authority was legal and sufficient.
But had he, with the sanction of the court, without any formal appointment, appeared and acted as the organ of the Commonwealth, or had no person so appeáred or acted, the judgment of conviction would hot, on that ground, have been erroneous; After verdict it is too late to object to the authority of the prosecuting attorney; and after the finding of a true bill, by a grand jury, the fact that the attorney, who had officiated for the state, under th‘e authority afid sanction of the Court, had not been commissioned by the Chief Magistrate of the Commonwealth, would be immaterial and unavailing to the accused. The attorney who acted was, pro hac bice, “the attorney for the Commonwealth.” And it should not be presumed', that the accused had been unjustly prejudiced b.y his intervention.
Bht we cannot imagine why a conviction, in other respects legal and proper, should be deemed erroneous or •prejudicial merely because the Commonwealth had been represented by an attorney selected by the Court, without objection, or by an amicus enrice acting under the sanction of the Court, or had been altogether unrepresented by professional counsel, or any other agency than that of the Court and jury of the country.
We therefore conclude, that this last and only remaining objection to the judgment, is as untenable as any of the others.
Wherefore—having thus cursorily considered the several objections which have been made to the judgment, and not finding in it any error of which the plaintiff should complain—we conclude that it should be affirmed.
It is therefore considered by the Court, that the judgment of the Court below be affirmed,