2 U.S. 184 (1792)

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U.S. Supreme Court

JOHNS v. NICHOLS, 2 U.S. 184 (1792)

2 U.S. 184 (Dall.)


Supreme Court of Pennsylvania

September Term, 1792

This was a feigned issue; upon which this single question was submitted for the opinion of the Court, whether the

Page 2 U.S. 184, 185

power of appointing the Clerk of the Mayor's Court of Philadelphia, was vested in the Governor, or the Corporation of the city?

The case was argued at the last Term by the Attorney General for the State, and by E. Tilghman, for the Corporation.

The Attorney General contended, that the Clerk of the Mayor's Court is an officer of the Commonwealth. In the act of incorporation (2 vol. Dall. Edit. p. 660, sect. 19.) the powers of the Aldermen are defined; but nothing is said of the appointment of the Clerk. The fines imposed for offences against the Commonwealth are to be paid into the State Treasury; and the Clerk is the officer, who not only keeps the records of the convictions, but collects the fines. (Ib. p. 20.) The Court is, in fact, a Court of Quarter Sessions for the City; and there is as much reason to assert, that the Justices of a Court of Quarter Sessions for any County have a right to appoint their Clerk, as that the Mayor, or Recorder, and Aldermen have a right to do so. If, then, he is an officer of the Commonwealth, the Constitution expressly provides that the Governor 'shall appoint all officers whose offices are established by this Constitution, or shall be established by law, and whose appointments are not herein otherwise provided for.' Art. II. Sect. 8.

Tilghman stated, that the true question was, whether the act of Incorporation gave to the Mayor, or Recorder, and Aldermen the power of appointing the Clerk of the Mayor's Court? By the 3rd sect. of the VII. Article of the Constitution it is provided, that 'the rights, privileges, immunities and estates of religious societies and corporate bodies shall remain, as if the Constitution of this State had not been altered or amended.' If, therefore, the Corporation previously possessed this power, in exclusion of the Supreme Executive Council, the Corporation now possesses it in exclusion of the Governor; and so it becomes the case of an officer 'whose appointment is otherwise provided for,' within the express exception of the 8th sect. of the II. article of the Constitution. It is, then, to be considered, either that the Corporation at large acquired the power, under the law by which it was instituted; or that the Mayor's Court acquired the right of appointment, as an incident to their jurisdiction; and the last section of the Act of Assembly directs the most favorable construction to be made, for the benefit of the Corporation. Thus, the 39th sect. enacts 'that for the well governing of the City, and the ordering the affairs thereof, there shall be such other officers therein, and at such salaries, or other compensation, as the Mayor, Recorder, Aldermen and Common Councilmen, in Common Council assembled, shall direct'; and if the Clerk of the Mayor's Court may justly be deemed an officer necessary, or useful, 'for the well governing of the City, [2 U.S. 184, 186]

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