Dooley's Case. court from the order discharging the prisoner; and the question submitted to it is, whether the city judge had the requisite authority to allow and act upon the writ. The act organizing the City Court of Brooklyn provides that the city judge may exercise within the county of Kings all the powers of a justice of the Supreme Court at chambers. (Laws of 1849, ch. 125, § 26, p. 174.) The territorial limitation, as the provision reads and as it was doubtless designed, refers to the place where the official acts are to be performed, and not to the extent of their operation. We have so decided on a late occasion in reference to the jurisdiction of a county judge, and the principle of our decision is applicable to the officer whose powers are to be considered in the case under consideration. What, then, are the powers of a justice of the Supreme Court at chambers which are conferred by the act upon the city judge of Brooklyn? The most accurate, and, as the construction relates to the functions of an inferior officer, the most correct definition is, such as are devolved upon the justice of this court in the performance of his duties in that capacity. That would not extend to such powers as are specially delegated to him as a commissioner. Supreme Court commissioners formerly possessed the powers of a justice of that court at chambers; but it was expressly provided that, when any power was given in express terms by any statute to the justices of that court, or either of them, without naming Supreme Court commissioners in such statute, such commissioners should not be authorized to exercise any such powers. (2 Rev. Stats., 280, § 19.) When, therefore, it was designed that the commissioners should perform any duties specially devolved upon a justice of the Supreme Court by statute, they were uniformly particularly designated as in the recording act, where, although the authority to take acknowledgments is conferred upon justices of the Supreme Court, and of course at chambers, yet Supreme Court commissioners are also particularly mentioned. (1 Zb., 756, § 4, subdiv. 1.) There are many other similar instances in the statutes, which it is unnecessary to quote. The habeas corpus act, in a section which I shall presently copy, after copying the authority to entertain the application under it upon any justice of this court, to be exercised of course at chambers, devolves it particularly upon any officer Dooley's Case. who may be authorized to perform the duties of such justice at chambers. It is true that as to such officer there is a restriction as to his place of residence, and it is possible that he may have been particularly designated on that account; but I am inclined to think that it was principally for the reason that such power is not generally conferred upon any officer unless he or his class is particularly mentioned. If I am correct in this, it follows that the city judge at Brooklyn has no other power under the act relative to writs of habeas corpus and certiorari than such as it confers upon any officer who is authorized to perform the duties of a justice of the Supreme Court at chambers. The original 23d section of the act (2 Rev. Stats., 563, 564) is in the following words: "Application for such writ (of habeas corpus or certiorari) shall be made by petition, signed either by the party for whose relief it is intended, or by some person in his behalf, as follows: (1) to the Supreme Court during its sitting, or (2) during any term or vacation of the Supreme Court, to the chancellor or any one of the justices of the Supreme Court, or any officer who may be authorized to perform the duties of a justice of the Supreme Court at chambers being or residing within the county where the prisoner is detained; or if there be no such officer within such county, or if he be absent, or for any cause be incapable of acting, or having refused to grant such writ, then to some officer having such authority residing in any adjoining county." It has been made a question whether the restriction as to residence applies to all the officers designated in the second subdivision, or only to those who are last mentioned. Grammatically, the qualification would seem to refer solely to the last antecedent following the last disjunctive, and there could not be much hesitation in adopting that interpretation but for what follows in the same section. The words "such officer," as there used, clearly refer to all those who have been previously particularized. That, however, raises but a slight, if any inference that it was intended to extend the limitation as to residence to the justices of this court. It has been several times decided at special term that a justice of this court can, at chambers, award a writ of habeas corpus that shall run into any part of this State. (The People a. Hanna, 3 How. Pr. R., 37, by Harris, J.; The People a. Woodruff, Ib., 32, by Willard, J.; and the People a. Dooley's Case. Cooper, 8 Ib., 288, by Barculo, J.) This construction is fortified by a provision in an act passed on the 22d of April, 1837 (Laws of that year, p. 230), directing that where an application should be made to the Supreme Court, to the chancellor, or to any one of the justices of the Supreme Court, for a writ of habeas corpus or certiorari, pursuant to the article of the Revised Statutes from which I have quoted, in cases where the prisoner is confined in a county other than where such court shall then be held or officer reside, the writ may be made returnable before some other officer in the county where the prisoner may be confined. This is quite significant that the restriction as to residence does not apply to a justice of this court; and it seems to me that it plainly infers that it does refer to all other officers, otherwise why is there not the same delegation of powers to them? The authority to entertain and act upon applications for the writ of habeas corpus is not conferred directly upon the city judge of Brooklyn by the act organizing his court. He derives it from the general act upon the subject incorporated in the Revised Statutes. That act is ambulatory, and confers the authority upon whoever may answer the description at the time of action. A justice of the Supreme Court takes it in an administrative, and not in his judicially official capacity. It does not, therefore, devolve upon any one having his general official power by substitution. Besides, where in a statute an officer is directly designated, it would be illogical to include him in a more general category, and especially where the inclusion is not clearly manifested. The habeas corpus act does separately and distinctly name officers having the powers of a justice of the Supreme Court at chambers, and to them only annexes the qualification of residence. The power to act officially is conferred upon the chancellor, the justices of the Supreme Court, and the officers having the power of a justice of the Supreme Court at chambers, three distinct orders. One of them clearly includes the city judge of Brooklyn. The others, ex vi termini, do not. It seems to me, then, that he must take the power under the description directly applicable to him. If so, he must necessarily take it cum onere. The qualification as to residence is elementary, and cannot be separated. The city judge of Brooklyn is a local officer, and it is not to Case of the Empire City Bank. be presumed that it was intended to confer upon him powers of more extensive application than those devolved upon similar officers to whom duties of the same general character were assigned. There is no direct indication of any intention to extend them, and there does not seem to be any good reason why they should be extended. Upon the whole, I am satisfied that the city judge had no jurisdiction in the case under consideration, and that his order discharging the prisoner should be reversed; the prisoner should be remanded, and the writ should be quashed. CASE OF THE EMPIRE CITY BANK. Court of Appeals; December Term, 1858. INSOLVENT BANK.-SPECIAL PROCEEDINGS.-CONSTITUTIONAL LAW. -CONSTRUCTION OF STATUTES. It is an error for the court at general term to reverse an order of the special term for want of jurisdiction, where a portion of the papers, in which the fact conferring jurisdiction, if it existed, would regularly appear, were not before them. Proceedings to charge the stockholders of a bank with the debts of the corporation, commence with the order of reference and notice thereof in the nature of process, to the stockholders. The referee's report is to the Supreme Court, at special term, and the parties interested have a right to appeal to the general term. These proceedings are therefore had before a court of general jurisdiction, and in such cases jurisdiction is to be presumed until the contrary appear. Determinations in the nature of judgments obtained in such proceedings against the stockholders cannot be questioned for defect of jurisdiction, where the formal steps to subject the persons of the parties to the proceedings have been taken, and the proceedings are such that the existence of the jurisdictional facts may be fairly considered as implied. The General Banking Law (Laws of 1838, 253), exempted the stockholders from liability, but reserved to the Legislature the right to repeal or alter it. The constitution of 1846, and the act of 1849 (Laws of 1849, 340), made stockholders individually liable. Held, that the latter provisions were not unconstitutional within the provisions of the Federal Constitution, as impairing the obligation of contracts in their application to the stockholders in a bank organized subsequently to 1849. Case of the Empire City Bank. The provisions of the act of 1849 are not unconstitutional, as depriving stockholders of trial by jury; nor as depriving them of property without due process of law; nor as conflicting with the provision that corporations may sue and be sued. The latter provision is enabling, not restrictive, and does not preclude other forms of proceedings. . What is "due process of law" considered. In proceedings under that act, the referee is to pass on and determine the amount of the debts to be paid, as well as the parties who are to pay them. The receiver's statement is not conclusive. The provision of the constitution of this State imposing individual liability upon the stockholders, requires from them besides loss of the amount of capital stock paid in, the contribution in addition of a sum equal to the amount of their respective shares of stock. Section 28 of the act of 1849 provides that the apportionment may be suspended for certain cause, not exceeding one year. Section 18 provides that if, in the opinion of the justice, further time is required, he may allow it not exceeding ninety days. Held, that where the apportionment was suspended for a year, and for some.weeks after the expiration of the year, there was no special term in the district in session, it was competent for the justice at the first special term which was held, to order a delay for the whole period of ninety days, notwithstanding the delay that had already occurred in waiting for a special term. It seems, that even in special proceedings before a tribunal of limited jurisdiction, provisions of law fixing the time for intermediate steps after jurisdiction has been once acquired are to be deemed directory, and a disregard of them does not avoid the proceedings. Where the receiver reports certain claims against the bank as disputed and to be litigated, the referee should not charge them upon the stockholders, and if he does so his report should be referred back. Who are liable as "stockholders" in such proceedings. A stockholder who is also a creditor cannot offset his claim against his assessment as a stockholder. Appeal from an order reversing an order confirming the report of a referee in proceedings to enforce the personal liability of the stockholders of an insolvent banking association. The previous proceedings in this case are reported 4 Ante, 118, and 6 Ib., 385. From the order of the general term reported in the latter volume, the receiver now appealed. Edgar S. Van Winkle and John M. Mason, for the appellants.-I. The act of 1849 is not unconstitutional. 1. It is not in conflict with the constitution of the United States, article 1, section 10. It is not a law impairing the obligation of contracts. It is prospective, and only applies to contracts made after the VOL. VIIL-13 |