The opinion
Thruston, J.,
dissenting, delivered the following opinion :
On an appeal from the judgment of the magistrate, in favor of the defendant.
The case was as follows: John H. Eaton was charged, before Waters, a magistrate of the county of Washington, with firing a gun, or pistol, or other fire-arm within certain limits in the city of Washington, against the provisions of an ordinance of the corporation which subjects the offender to a fine, not less than five nor more than ten dollars, at the discretion of the magistrate. The magistrate gave judgment, after hearing the case, in favor of the defendant, Eaton ; and upon this judgment the corporation have appealed to this Court.
The defendant, in support of .the judgment of the magistrate, has submitted to the Court the following considerations.
1. That the appeal ought to be dismissed, because the magistrate was not one of those selected by the corporation for the trial of cases in which they were parlies.
2. Because the appeal was not ordered by the corporate body in their corporate character, but by the mayor, J. P. Van Ness.
3. Because this Court has no appellate jurisdiction in the case of fines and pecuniary mulcts.
. 4. If this Court has jurisdiction generally where the fine is certain and fixed, they have none where the quantum of fine is uncertain, but dependent on the arbitrium of the magistrate between a minimum and a maximum limit.
As to the first point, “ that the magistrate was not one of those selected by the corporate authorities according to the provisions of the ordinance for the hearing of cases of this sort.”
*362 This objection is not valid ; because every justice of the peace has equal power and jurisdiction, and the corporation have no right to disfranchise any justice of the peace, or to invest any of them with exclusive privileges which may not be enjoyed by any other magistrate. That the corporation may, for their convenience, and because of the greater trust and confidence they may repose in some justices over others, require of their police officers to have the corporation, cases brought before certain justices of their selection, may be proper; but this is a matter which.only relates to the corporation and those officers. If the officers disobey this injunction, it is competent for the corporation, perhaps, to dismiss them as corporate officers; but the jurisdiction of justices of the peace is derived, not from the corporation, but .from the laws of the United States; and any justice'of the peace is as competent to entertain jurisdiction of pecuniary mulcts, within certain limits, as any other justices; and it is not error, if any other than those selected by the corporation take cognizance of the offence.
Secondly. “The appeal was not ordered by the corporate authorities, but by the mayor.”
There is nothing in this objection. The appeal is not in the • name or in behalf of the mayor, but of the corporation in their corporate style and character.
It is true, the mayor directed the appeal in behalf of the corporation ; and this he might do as their agent, and ministerial officer, and they, by their attorney in Court, have ratified and avowed his act. Surely it would be requiring too much, that by a solemn resolution of the board they should have authorized this appeal, and further solemnized it by affixing thereto their corporate seal. We have never questioned the authority of any attorney of this Court, nor required proof of his substitution, or representative power, when his name is marked on the docket, and no one appears to question his right to represent the party for whom he professes to act. I have never known an instance in which this Court have ever required an attorney, admitted to practise therein, to produce his warrant to represent any party to a suit therein. The confidence reposed in the bar, and the comity due to them in the relations in which they stand towards the bench, forbid this scrutiny. It would be tolerated only where the party, whom the attorney professes to represent, should disavow the doings of the attorney.
As to the third objection, “This Court has no appellate jurisdiction in the case of fines and pecuniary mulcts.”
Here, indeed, is a matter of grave consideration. I know of no appellate power in this Court from the judgment of a justice of the peace, but what is given by the statute. “ The Act of March 1, 1823, [3 Stat. at Large, 743,] for extending the jurisdiction of single *363 magistrates,” which empowers such magistrate to take cognizance of cases as far as $50, describes precisely the cases in which such justice may exercise jurisdiction. The cases there enumerated, most clearly, in my opinion, are those of a civil character only, because it speaks of the debtor, “ his executors and administrators ; ” because it authorizes the justice to give interest on the judgment, &c.; because it exempts females, and males over seventy from arrest, imprisonment, and execution.
In the seventh section of the act, an appeal from the judgment of the magistrate is given to this Court in all cases where the judgment is for a sum over five dollars.
Now, as it is inconsistent with the character of a pecuniary fine that executors and administrators should be liable for it, or interest charged on the judgment for it; and against reason that females, or men over seventy should be exempted from the penalties for violating a penal law, I take it for granted that this first section, prescribing the jurisdiction of justices of the peace, was intended, and is by .necessary construction, limited to eases of a civil character only. Then, when the right of appeal was given by the said seventh section to this Court from the judgment of a magistrate, is not that appeal only from judgments rendered under the powers given to the magistrate by the preceding section ; and is it not clear that those powers were limited to cases of a civil character only ? Cases where executors and administrators might be charged ; where interest might be computed and taxed; where sex and age were exempted from arrests and imprisonments on the judgments, which is utterly inconsistent with any of the characteristics of a criminal law; for who ever heard of exemptions in favor of age or sex from the animadversions of a criminal statute ? yet, notwithstanding this clear restriction of our appellate jurisdiction to cases of a civil character, yet, we have undertaken to exercise it in criminal cases, and thus, by nice and rigid application of the rules of pleading, to defeat and prostrate the guards and securities of society derived from the denunciations of the law by inspecting the warrants and doings of justices of the peace, Vying them by the touchstone of technical criticism, and reversing their decisions on grounds, at least, doubtful, and which must inevitably lead to the annihilation of the whole city police ; and how have we usurped this fatal power thus to loosen the bands which bind society together, to give this triumphant victory to the wicked, to trample with impunity on all the rights, the peace, and comfort of the more orderly and better disposed portion of society. By a forced and gross perversion of terms, by considering a penalty a pecuniary mulct for a certain offence, as a debt. How can this be ? What gives a magistrate jurisdiction when he issues *364 a warrant against an offender for the violation of a penal statute ? Surely, at the time the warrant issues there is no debt subsisting; the debt is not the foundation of the warrant, but the consequence of conviction; non constat, at that time, that the party will be cop-victed. What does the accused come to defend ? a debt ? no ; against the commission of an act forbidden by law. There is not a word about debt in the whole proceeding, except for form’s sake, in the warrant. The whole question is, did you, or did you not, commit the offence ? If the justice decides affirmatively, then indeed the penalty follows — a pecuniary mulct. On an appeal, then, what does this Court examine ? whether the accused owes the money or not ? No ; whether he has committed the offence or not. Where do we get the power to try a question of this sort 1 Is it because in the warrant the justice has, in conformity with some general directory provision in the charter of the- corporationf charged the offence as a debt ? Suppose the form of the warrant changed, and it were to charge the defendant specifically with the real truth, that he had violated the law by shooting, &c., against the form of the ordinance in such case made and provided, as in offences indictable in this Court where the special offence is set out; then, not being a debt, there would be no appeal. Now, by the statute of Maryland, justices are invested with jurisdiction over misdemeanors where the penalty does not exceed £5 by way of action of debt; but their jurisdiction was final, and there was no appeal from their judgments.
But we claim a right of entertaining an appeal from the judgments of magistrates in cases of violations of penal ordinances of the corporation entirely, as I understand from the expressions in the charter of the corporation, “ authorizing penalties to be recovered, and executions to issue for them as in cases of small debts.” Does this give an appellate jurisdiction to this Court ?
The form of proceeding for the recovery of these penalties does not necessarily invest them with all the character and properties of debts purely civil; for I have endeavored to show the absurdity resulting from such a construction, and that the appellate jurisdiction given us by the statute can be commensurate only with the original jurisdiction given by the same statute to the justices, and that it would be most absurd and unreasonable that penalties for municipal offences should be embraced in the statute, from the incongruity subsisting between pecuniary mulcts and debts of a purely civil nature. By the Maryland law, no appeal was allowable from the judgment of a magistrate in the case of fines and penalties, for by the Act of 1791, c. 68, for the speedy recovery of small debts out of court, &c. &c., the jurisdiction of the justices as well as that of the county courts by appeal from *365 their judgments, was confined to cases strictly civil in their nature; “ to debts or sums of money due on contract, or damages for the non-delivery of grain or other articles,” excluding debts, (if they may be so called,) incurred by transgressing penal laws. If there be any statute of Maryland allowing appeals in cases of misdemeanors, I am not aware of it. And so in our statute, to debts where interest might be taxed, executors and administrators made liable, and age and sex were exempted from imprisonment; in such eases only does the statute authorize an appeal; and pecuniary mulcts cannot, without violating every principle which characterizes them, be brought within the scope of the statute; therefore their recovery is provided for by the aforesaid clause of the charter, making them “recoverable as other small debts,” &c., so that it appears that the State was satisfied to leave the exclusive jurisdiction over small offences, to the small extent of five dollars’ penalty, to the magistrate. . In this existing state of things, the Congress pass the aforesaid act, “ for extending,” &e. Surely if they meant to invest this Court with power to revise the proceedings of justices under corporation ordinances imposing penalties, they would have used terms more congenial with the matter. A long established law is not to be annulled by farfetched implications, or a subsequent statute, when any sensible interpretation of the statute utterly repudiates such implications. Surely they never meant that if a man, sentenced to pay a penalty, should die before it was levied, that his executors or administrators should be charged with it; surely not, that»the judgment for the penalty should carry ■ interest; and certainly not, to exempt pauper vagrants and abandoned profligates of any age or sex from the only coercive power over them, that of imprisonment and arrest, when they incurred the penalty, and possessed no means of paying it. See the consequences : a woman, or a man over seventy, may riot in the violation of every penal ordinance, may set at defiance the whole police of the city, if there be no breach of the peace. This" is really more deference than was ever paid to age or sex in any country. This Court, at least, has not been quite so indulgent to the ladies, as some recent convictions, and not very lenient sentences, prove. But we claim appellate jurisdiction of such cases from the expressions, “ in all cases where,” &c., in the section authorizing appeals from the judgments of single magistrates; now, that word, all, can, I think, only apply to the enumerated cases in the first section ; the appellate jurisdiction can be commensurate only with the given original jurisdiction, and that, I have endeavored to show, embraces civil eases only. But the word debt is used in the warrant. It is called a plea of debt; and hence our claim to euter- *366 tain an appeal in the case. Bnt this form was given by the Maryland statute, and has probably been continued without much reason ever since ; and because of this anomalous form of proceeding, by calling it an action of debt, does it necessarily involve all the incidents of debt ? Certainly a debt created by statute is available against executors and administrators; a penalty is not. It carries interest per se ; a penalty does not. In short, there is no rational construction of the statute “ for extending,” &c., either from the words, or meaning, or purport of the clause giving and defining the cases in which a justice may exercise original jurisdiction, as well as those granting appeals to this Court from their decisions, that can justify this Court in entertaining appeals from the judgments of justices, under penal statutes and ordinances; and this is greatly strengthened by the strange consequences that must result from such an exercise of jurisdiction. As far as I can discern, there is no such appeal allowable ; it was so in Maryland ; and as there are no express words, nor rational construction of the statute which has changed the law, I am compelled to say that the jurisdiction of the magistrates in cases of penal statutes and ordinances is exclusive and beyond our control, as much as our jurisdiction is final and beyond the control of the Supreme Court in criminal cases. Whether it be a wise provision of the law I know not. If it be thought not so, the Congress is competent, and they only, to change it. I am of opinion, however, that if we determine to exercise appellate jurisdiction in such cases, and do not relax somewhat of that severity and legal scrutiny in regard to the doings of justices, we shall have no criminal law worth having. It has been ruled, and not yet overruled by the Court, that a criminal of any the most aggravated offence, who has been bailed, and forfeited his recognizance, is clear of the crime. That criminals sentenced to imprisonment and fine for misdemeanors, can be entitled to the bounds; and for a fine only can be released under the insolvent laws. Having hitherto exercised this now disputed appellate jurisdiction, the warrants of magistrates have been examined with the most rigid legal criticism because the magistrates had not framed their warrants with all the exactness of indictments, and their judgments have been reversed, and that wholesome police, so essential to the well-being of our citizens, paralyzed ; mitti-muses are looked into with the eyes of special pleaders; and, in a recent case, a man was discharged because, having incurred a penalty and being unable to pay it, and having, for such inability been committed to the workhouse, the mittimus neglected to state that he was a man of color, although, when brought before the Court, he was evidently so; and although the offence could only be committed *367 by a man of color, and it was sufficiently set out, in the mittimus, in every respect, except the words “man of color.” We believed the mittimus, then, that he, by possibility, might not be a man of color, against the evidence of our own eyes. But here it was urged, and in all cases where we had heard appeals in such cases, the old maxim, “ It is a penal statute, and must be construed strictly,” but where the question is jurisdiction or no jurisdiction, it is quite a civil affair ; “ nothing but an action of debt,” and being so we have jurisdiction by the statute. If it be a civil matter, how came we to apply the strict rules of criminal pleading to cases of a civil character only ? This seems to be blowing hot and cold with the same breath; to get jurisdiction, the case is merely one of debt, a civil matter altogether ; when we get it before us we pounce upon it with all the stern severity and criticism of criminal pleadings, utterly disregarding the directions of the statute that we are to decide according to law, justice, and equity, which I take to be clearly indicative of an intention in the legislature to authorize the Court to relax the strict rules of construction in regard to warrants for pecuniary mulcts, if they be really purely civil in their character, if there be enough, though not set out in technical form, in the warrant, to inform the defendant of the offence with which he is charged, or otherwise we disregard entirely the emphatic and important words, justice and equity, and the more especially as it may be supposed to have been in the contemplation of the legislature, that the warrants from which appeals are taken to this Court are devised by justices of the peace who are not lawyers by profession, nor skilled in the subtleties of special pleading. I have done with this objection ; and if there be a doubt in the mind of any on this point, I think there can be but little as to the validity of the last objection, namely, “ That if this Court has jurisdiction generally where the fine is certain and fixed, they have none when the quantum of fine is uncertain, and depends on the discretion of the magistrate between a minimum and a maximum limit.”
I need say nothing of the argument, that it is a settled principle, that, from the judgment of a court in the exercise of a discretionary power, there is no appeal, which I thought had great force in it; nor of the argument of the counsel for the corporation, that, inasmuch as the magistrate dismissed the warrant, and exercised, consequently, no arbitrinm, that, as the case would be taken up, de novo, in this Court, this Court was competent, if they reversed the justice’s decision, to assess the fine. It is true, if we were to take up the case, and hear the evidence, we might be of opinion that the justice did wrong, and that he ought to have given judgment for the corporation; but, when we had *368 done so, and come to the point of assessing the fine, we should be at fault. Notwithstanding the Proteus character assumed for prosecutions for pecuniary penalties, I consider them as belonging to the criminal side of the Court, as real penal statutes, whether animadverting on mala in se, or mala prohibita, and the defendant entitled to all the privileges given by the statute ; and one is, that the fine shall be assessed by the justice, at his discretion, and not by this Court, at theirs. Suppose, now, after reversing\he magistrate’s decision, we come to the consideration of assessing it,-.where shall we fix it; at the minimum, the maximum, or between the two ? Neither of the two latter, because the law has given this power to another and not to us; does it follow, because the law has given it to one, it can be exercised by three others ? The defendant has a right to have his exclusive judge, as to that point; well, it may be said, we may safely fix it at the minimum, term; the defendant could have nothing to complain of there; but the law would, for it contemplated something more — a higher assessment — a greater fine; we must take the whole power of the justice, or none; we cannot execute half a law, because we cannot get at the other half; all the range between five and ten dollars is barred'against us.
For these reasons, I am for affirming the judgment.