Hanna, J.
The city of Indianapolis is incorporated under the general law for the incorporation of cities, approved March 9, 1857. [Acts of 1857, p. 42.] At the municipal election in May of that year, Wallace was elected mayor for the term of two years.
The common council had not ordered the election of a city judge, as they were authorized to do by § 9 of that act. In the absence of such order and election, it is enacted by § 18, among other things, that “He [the mayor] shall hold a city Court every day, Sundays excepted, at, &c.; whilst sitting as such Court, he shall have exclusive jurisdiction of all prosecutions for violation of the by-laws and ordinances of the city and township in which such city is situated; he shall have, within the limits of said city, the jurisdiction and powers of a justice of the peace, in all matters civil and criminal arising under the laws of this state, and for crimes and misdemeanors his jurisdiction shall be co[571]*571extensive with the county in which such city is situated: provided, that in trials before him, he shall have power to adjudge imprisonment as a part of his sentence, not exceeding thirty days in the city or county prison. In all [indictments] in the city judge or mayor’s Court, either party may have a trial by jury, and a change of venue to a justice of the peace in such city, and appeal to a Court of competent jurisdiction, under the same restriction, and in the same manner, as in a justice’s Court; except in cases where the mayor has exclusive jurisdiction, no change of venue shall be allowed. The same rules of pleadings and practice shall be observed in the city or mayor’s Court that are in justices’ Courts. * * * * All fines and penalties collected by him shall be paid into the city treasury, except when otherwise directed by acts prescribing the duties and powers of justices of the peace. If the common council.shall deem it expedient for the interests of such cause a judge to be elected, the same may be done fit any general election at which the mayor shall also be e$fet4<l* and such city judge shall give the like bond as the ímayor is herein required to give, and he shall, from and aff$r due qualification, perform all the judicial duties hereiffire^-, quired to be performed by the mayor.”
Wallace took upon himself the duties of the office of mayor—among others, those of a judicial character above set forth.
Within the two years for which he was elected mayor, he resigned that office and was a candidate, and received the greatest number of votes, for the office of sheriff of Marion county. This proceeding was commenced 'by Waldo, to test the question of his eligibility to the latter office, under § 16, of art. 7 of the constitution' of Indiana, [which reads thus]: “No person elected to any judicial office, shall,' during the term for which he shall have been elected; be eligible to any office of trust or profit under the state, other than a judicial office.”
Was the office of mayor of the city of Indianapolis, during the term for which Wallace was elected, a judicial [572]*572office, within the meaning of the constitutional provision above quoted?
We say during that term, because it is not pretended but that the common council, by ordering the election of a city judge, for any succeeding term, might take from the office of mayor all duties, and divest that officer of all powers, of a judicial character. But it is averred that such order had not been made preceding the election for that term; that after the election of Wallace, he took upon himself the executive, ministerial, and judicial duties of the office, so far as they were devolved upon him by the act above referred to.
What is a judicial office, and who are judicial officers, who are thus, for a time, prohibited from seeking certain other official stations?
An office is a particular duty, charge, or trust, conferred by public authority, and for a public purpose. Offices are civil, judicial, ministerial, executive, political, municipal, diplomatic, military, ecclesiastical, &c. See Webster’s Diet., h. v.
An office is a right to exercise a public function or employment, and may be classed into civil and military. And civil may be classed into political, judicial, and ministerial. Political, are such as are not connected immediately with the administration of justice, or the execution of the mandates of a superior officer. Judicial, are those which relate to the administration of justice. Ministerial, are those which give the officer no power to judge of the matter to be done, and require him to obey the mandates of a superior. It is a general rule, that a judicial office cannot be exercised by deputy, while a ministerial may. 2 Bouv. Law Diet. 259.—4 Jacob’s Law Diet. 433.—2 Toml. Law Diet. 665.
Judicial.—Belonging, or emanating from a judge, as such. 1 Bouv. Law Diet. 681. Pertaining to Courts of justice. Webster’s Diet. Belonging to a cause, trial, or judgment. Bailey’s Diet,
By our state constitution, “ The powers of the govern[573]*573ment are divided into three separate departments, the legislative, the executive, including the administrative, and the judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this constitution expressly provided.” Art. 3, § 1.
Article 4, treats of the legislative power; article 5, of the executive; article 6, of the administrative power; article 7, of the judicial, as follows:
“ Sec. 1. The judicial power of the state shall be vested in a Supreme Court, in Circuit Courts, and in such inferior Courts as the General Assembly may establish.”
Thus, by the constitution, the office of supreme judge is made a judicial office, although the jurisdiction of that Court is, by § 4 of the same article, made to depend much upon the legislative will. For that Court has no original jurisdiction, except it be conferred by the legislative power, and the same power might throw around appeals and writs of error such regulations and restrictions as would place but comparatively little business before that Court of last resort under the state government.
So, the office of circuit judge is, in like manner, made a judicial office by the constitution; but to what extent that officer shall have either civil or criminal jurisdiction, depends entirely upon the legislative department. The jurisdiction, civil and criminal, might be so extended as to over burden the officer with business, or the place might be made a mere sinecure; but if made so, it would still be a judicial office, but without prescribed duties attached thereto.
The number, style, and jurisdiction of the inferior Courts, depend upon the action of the General Assembly, as does the number of judges, or judicial officers, by whatever name they may be designated, who shall, in such inferior Courts, judicially administer the law.
The extent of jurisdiction that may be vested in one of those inferior tribunals, whether more or less, does not, therefore, determine the question whether the officer who may hold such Court, or preside at such tribunal during the judicial administration of the law, within the pre[574]*574scribed jurisdiction, is a judicial officer, and the office a judicial office. The true question appears to us to be—Is this office a part of the system established by the General Assembly, under the constitution, to sustain the government therein provided for, by the judicial administration of the laws of the state and of justice? The duties performed by the officer, or the jurisdiction appertaining to the office, may be looked to to determine, in a case where it is not made clear by the constitution or the statute, the inquiry as to whether a particular office is a judicial office or not.
We suppose it would be within the power of the General Assembly, by distinct and separate acts, to create an inferior Court in each county, provide for the election of the judge thereof, fix his compensation, and prescribe his duties and the jurisdiction of such Court. Now, suppose a series of bills were introduced into the General Assembly to carry out such a purpose, and they should all pass into laws except the last named, showing upon their face that the Court thus established was an inferior Court, such as contemplated and embraced by § 1, art. 7, of the constitution ; would not the judges elected under these acts, but without their jurisdiction and duties being fixed, be as much judicial officers as circuit judges without ¡Drescribed duties ? We think they would. We look, then, only to the jurisdiction of a Court or officer, and the duties of the incumbent, for the purpose of arriving at a correct conclusion, as before stated, in the absence of positive enactment in that respect, as to whether the office falls within the constitutional provision.
In the case at bar, the mayor had the same jurisdiction as a justice of the peace, with the additional power to imprison, as a part of the punishment, for offenses against the law. Let us for a moment look to the jurisdiction of that officer. Although, by the constitution, the office, and duration of the term, of justices of the peace, are provided for, yet their powers and duties were to be fixed by law. “A competent number of justices of the peace shall be elected by the voters in each township in the several coun[575]*575ties. They shall continue in office four years, and their powers and duties shall be prescribed by law.” Const, art. 7, ^ 14. Whether the framers of this section had in view the office of justice of the peace, as it anciently existed under the English government, where the incumbent was only a conservator of the peace, without judicial powers (Toml. L. D., vol. 2, p. 322), or whether they had in view that office as it had existed in this state, under our old constitution and laws, when the incumbent was vested with judicial powers, civil and criminal, of much importance in our frame of government, we need not stop to inquire, for the reason that the jurisdiction and duties of that officer had been, previous to 1857, so far established and defined by law under the new constitution, as to dispense with the necessity of such an inquiry, and to show clearly that he was, at the passage of the act under which Wallace was elected mayor, intrusted with judicial powers of great magnitude. He had “jurisdiction to try and determine suits founded on contract or tort, when the debt or damages claimed, or the value of the property sought to be recovered, does not exceed 100 dollars.” 2 R. S. p. 451. He could not try the title to land, nor actions for slander, &c. Id. p. 452. He had power to administer oaths, issue subpoenas, and attachments for contempt (id. p. 453); and to fine for contempt (id. p. 459); to issue a venire, impannel a jury, receive the verdict, grant a new trial, or enter judgment thereon (id. p. 460); to issue writs of replevin (id. p. 464), attachment for property, and ne exeat (id. p. 473), capias ad irespondendum,, capias ad satisfaciendum (id. pp. 469, 470). He had to keep a record of his proceedings. Id. p. 453. In state prosecutions, his jurisdiction was coextensive with the county. Id. p. 497. Pie had exclusive, jurisdiction where the fine assessed could not exceed three dollars; and concurrent, &c., to try and determine all cases punishable by fine only, or by fine with discretion to imprison; and jurisdiction to make examinations in all other cases (id. p. 497), to hear applications fox-surety of the peace (id. p. 500), &c.
By turning to 2 E. S. p. 504, it will be seen that four [576]*576offenses are pointed ont, over which justices had exclusive jurisdiction; and by an act defining misdemeanors, &c. (id. pp. 424, 447), there áre more than fifty offenses in which a justice had concurrent jurisdiction, &c., and power to hear, try, determine, and assess a fine, which, if not paid or replevied, gave him the further authority to commit to jail, &c. Id. p. 500. The power is given to the mayor, as a part of the punishment, to inflict imprisonment in the county jail, not exceeding thirty days, in such cases, we suppose, as the sentence might be applicable. See § 18. All this power and jurisdiction, which was conferred upon a justice of the peace, certainly made his office one of the inferior Courts which the General Assembly might establish, spoken of in § 1, art. 7, of the constitution, if he was not a judicial officer by virtue of § 14 of that article—a point which we need not determine. It is said that “the test of a Court of record is, whether it has or has not the power to fine and imprison.” 3 Bouv. Inst. 68. As the same jurisdiction, and, in some respects, greater, was conferred upon, and exercised by, the mayor, Wallace, we can come to no other conclusion but that, if such judicial power was legally conferred, he was a judicial officer within the meaning of the constitutional provision quoted. This raises the next inquiry—
Were the duties enjoined upon a mayor, by the statute, of such a character as to fall within the prohibition of § 1, art. 3, of the constitution, heretofore quoted ?
Wallace was, it is alleged, elected mayor. His duties, as a city judge, have been already fully referred to. It is further provided by the same statute (Laws of 1857, p. 46, § 18), that “It shall be the duty of the mayor to see that the laws of the state, and the by-laws and ordinances of the common council, be faithfully executed within such city; he shall be a conservator of the peace, and as such, shall have, within the city limits, the power conferred upon justices of the peace for that purpose; to exercise supervision over subordinate officers, and to recommend to the common council such measures as he deems for the public good; he shall sign all commissions, licenses, and permits [577]*577granted by the common council, and he shall perform such other duties as the nature of his office, and the interests of the city, require; he shall have the custody of the corporate seal, and may take and certify,” &c. “The mayor and councilmen of the said city shall constitute the common council. * * * * mayor shall be the presiding officer of the common council, and shall have a casting vote in all Cases, when a tie, but not otherwise.” Id. § 28. And “ All by-laws and ordinances shall, within a reasonable time after their passage, be recorded in a book kept for that purpose, and signed by the presiding officer of the city.” Id. § 76.
It will be observed that, in addition to the duties thus specially devolved upon the mayor, he is “to perform such other duties as the nature of his office and the interests of the city require.” This makes it proper that we should inquire into, and briefly refer to, the history of the office, and the nature of the duties of the officer, as formerly understood. “Mayok (Prcefectus urbis), anciently meyr, comes from the British miret, i. e., custodire; or from the old English word maier, viz., potestas, and not from the Latin Major. The chief governor or magistrate of a city or town corporation. King Rich. I., anno 1189, changed the bailiff of London into a mayor; and from that example king John made the bailiff of King's Lynn a mayor anno 1204. * * * *' Mayors of corporations are justices of the peace pro tempore. * * * * The powers and duties of a mayor, or other head officer of a-corporation, depend, in general, on the provisions of the charters, or prescriptive usage of the corporation, or the express provisions of an act of parliament. It is commonly one of his duties, as well as of his particular privileges, to preside at the corporate assemblies.” 4 Jacobs’ L. Diet. 264,265.—2 Toml. L. Diet. 540. “ The chief or executive magistrate of a city. It is generally his duty to cause the laws of the city to be enforced, and to superintend inferior officers. But the power and authority which mayors possess, being given to them by local regulations, vary in different places.” 2 Bouv. L. Diet. 150. “The chief magistrate of a city or [578]*578corporation.” Bailey’s Diet. “ Originally an overseer, a bailiff. The chief magistrate of a city. In America, is the chief judge of the city Court,” &c. Webst. Diet.
Except the judicial powers devolved upon the mayor by this statute, his duties, by virtue of his office of mayor, would, in our opinion, be of an executive and administrative character, but whether such as fall within that department of the government as established by articles 3, 5, and 6, of the constitution, is the next inquiry.
As it is expressly provided by the third article that “No person, charged with official duties under one of these departments, shall exercise any of the functions of another,” &c.; andas it is averred that Wallace was elected mayor, not city judge by that name, it is necessary for us to determine whether his executive and administrative duties are to be classed in one of the great departments of the state government, for the reason that we have already signified, that certain of the “official duties” with which he was charged, fall within the judicial department.
If all the official duties, with which he was charged, are to be classed within the one or the other of those departments, then it is too clear, it appears to us, to require argument, that he had the right to exercise official duties in but one of the departments; and any attempt to require him to discharge duties, at the same time, in another of the departments of the government, would be inoperative.
In other words, if he was, as averred, elected to the office of mayor, the legal and appropriate duties of which are within one of these great departments, and of an executive and administrative character, and he should be required by statute, whilst acting in that capacity in the discharge of those duties, to exercise functions of a character falling within the judicial department, such statute would be simply invalid—one that he might, and should, disregard—-just as an officer in the .judicial department of the state might disregard any attempt to charge him with official duties of the legislative department. But if the executive and administrative duties with which he was officially charged, should not be considered as within either of the depart[579]*579ments of the state government, because he was merely, in that respect, an officer of a municipal corporation, in that case he might appropriately discharge all those duties at the same time.
After much consideration, we are of opinion that the executive and administrative duties of Wallace were not such as come within those departments of the state government, as established by the constitution, and that he was, consequently, left free to be charged with official duties under either of the other departments; that he was so charged with, and took upon himself, the duties of a judicial character before referred to, not as incidental to his office of mayor, but as separate and independent duties; and that during the term for which he. undertook thus to discharge judicial functions, he was ineligible to the office of sheriff.
The first part of this conclusion is in consonance with the decision of the superior Court of the state of Delaware, in the case of The State v. The Wilmington City Council, 3 Harr. 294. By the constitution of Delaware, “ No ordained clergyman, or ordained preacher of the Gospel of any denomination, shall be capable of holding any civil office in this state,’,’ &c. ' One Hagany, an ordained minister, was elected city treasurer of Wilmington; and, upon the matter being properly brought before the Court, it was held, in substance, that the office of treasurer of the city was not a civil office in the state, within the meaning of the constitution; that the word “state,” as there used, meant the body politic; that the purpose of the constitution was to establish the principles of government for the community as a body politic—to establish a state government and to provide the mode of its administration; that in speaking of offices, such offices were undoubtedly meant as were designed for that purpose, either directly or indirectly; that a corporation office formed no part of the system of government; that the provision had reference to the political system then framed, to-wit, to state offices, and not to corporation offices.
The case at bar differs from the one above cited in this, [580]*580that here, duties were devolved upon the municipal officer, other than those having reference to the administration of the affairs of the corporation, not incidentally, but in such terms as created, for the time being, a separate, inferior Court—an incorporeal, political being, created for the purpose of administering justice judicially. 3 Bouv. Inst. 67. He was required to judicially administer the laws of the state in respect to misdemeanors, as well as the laws or ordinances of the city government. If his administration of the laws had been confined to those of a municipal character, although his acts might have partaken of the nature of judicial decisions, yet such acts would not, in our opinion, have classed him with judicial officers under the constitution; the classification under that instrument properly including all such, and only such, officers as are clothed with general, not incidental, powers to judicially administer the laws of the state. That he acted in a two-fold capacity is evident, not only from the duties devolved upon him, but from the fact that the evidence of his acts as a judicial officer were to be perpetuated by being made a matter of record, by himself, in proper books kept by him for that purpose (Acts 1857, p. 47, § 19), whilst his acts as a mere executive, corporation officer were kept in remembrance by being spread upon the corporation records, kept by an officer—a clerk provided for that purpose. Id., p. 48, § 20. If a city judge should hereafter be elected, the first-named books would go into the hands of that officer, as his regular successor in judicial station, whilst the corporation books would remain under the control of future officers of the corporation—mayors, eouncilmen, and clerks.
Under this view, the whole controversy is reduced to a single proposition, namely: The statute conferring upon the chief officer of a city the' authority to judicially administer justice, under the laws of the state, is, or is not, constitutional. If it is constitutional, then Wallace, having voluntarily accepted position under that law, was, by that act, and by force of the constitutional prohibition, placed in a condition that his mind was left free to discharge judicial functions, for the term for which he accepted, without [581]*581being disturbed by seeking preferment, for the time being, in either of the other departments. If the statute, conferring judicial power, is unconstitutional, then a very grave question would arise, as to whether all his acts were not, in that respect, void.
It is clearly the duty of each of the great departments of the government to regard the action of the co-ordinate departments as being authorized by the constitution, unless there is a manifest infraction of that instrument. Measuring this statute by that rule, there was not so decided an excess of authority, by the legislative department, in the adoption of that statute, as would constrain us to pronounce it void. It is our duty to regard the whole statute as operative, if we can properly do so. This we are enabled to do by following the principles of construction laid down in the Delaware case above referred to, and, also, in the eases of The State v. Hutt, 2 Pike, 282; 3 Greenl. (Maine R.) 284; Bamford v. Melvin, 7 id. 14.
There was a motion made in this Court to dismiss the appeal. An act approved March 2, 1859, and declared to be in force from and after its passage, authorized the appeal. Acts 1859, p. 35. This case was decided in the Circuit Court, after the taking effect of that act.
We have been greatly aided in the investigation of the questions involved, by the able and ingenious arguments, both written and oral, of counsel on each side.
Perkins, J.
The opinion of the Court, prepared by Judge Hanna in this case, is sufficient and satisfactory. I do not propose to write another; but simply to briefly notice the decisions of this Court bearing upon one or two of the questions in the pending cause. Its importance and its novelty, .in this state at least, justifies me in so doing.
One of the questions in the cause, involves the relation of a city, in this state, to the state. Are the laws, enactfed by the city, the laws of the state, and do the officers of the city, in administering her laws, act as officers of the state government ? It seems to have been so supposed, so far [582]*582as there appears to have been any idea upon the point, in the cage of The City of Madison v. Hatcher, 8 Blackf. 341; which case was silently followed in The City of Indianpolis v. Blythe, 2 Ind. R. 75.
•Hence, in those cases, it was held that where the same act was an offense against the criminal laws of the state, and also against the by-laws of the city, the act could only be punished under the state laws, in the mode prescribed, by the constitution; and that punishment, again by the city would put the party twice in jeopardy for the same offense. But the cases of Bogart v. The City of New Albany, 1 Ind. R. 38; The Town of Indianapolis v. Fairchild, id. 315, and Levy v. The State, 6 id. 281, took a somewhat different view of the question; and, finally, the cases of Madison and Hatcher, and Indianapolis and Blythe, supra, were wholly overruled by Ambrose v. The State, 6 Ind. R. 351.
In The State v. Moore, 6 Ind. R. 436, the Court held-that where the state of Indiana, by her laws, made criminal an act which was also made criminal by the laws of the United States, the doing of the act within this state constituted an offense against both the United States and the state, .two separate governments; that the single act thus constituted two offenses, one against each government, and that each government, by its own officers, might punish the act once, whereby the same act would be twice punished as two offenses, one against each government. And in Ambrose v. The State, supra, the same doctrine was applied to the government and officers of the state and the city; and it was held that each might punish, in its own mode, by its own officers, the same act, as an offense against each.
This settles the question that the mayor of the city, when acting as such, is not a state officer; and shows that, in acting, both as a mayor for the city, and a judge uñder the laws of the state, he acts in two capacities, and that the same act might, on the same day, be punished by him, once as mayor, acting for the city, and once as a judge, punishing for a violation of the laws of the state; [583]*583and that one of these prosecutions would be no bar to the other.
It further shows that, though he would act in two capacities, or in two offices, but one of them would be an office under the state.. It is as* if the state should confer upon the district judge of the United States for Indiana, jurisdiction of causes arising under the laws of the state. Supposing this could be constitutionally done, and to be done, that judge would, undoubtedly, be a judicial officer of the state and of the United States. So the mayor is made, by the law, a judicial officer of the state and of the city; and if this can be done legally, then Wallace was, while mayor, a judicial officer of the state, and ineligible to the office of sheriff.
The constitution provides that the judicial power of the state shall be vested in such Courts as the legislature shall create, of which the Supreme and Circuit Courts shall be two; and it further provides that justices of the peace shall be elected, but not that they shall exercise judicial power.
It will be observed that the judicial power is vested in Courts, not in officers. An officer may not necessarily be a Court. A justice of the peace is not necessarily a Court. He is not a Court when elected, simply by virtue of his election, and is not vested, by his election simply, with judicial power. But if the legislature, after or' before his election, vest judicial power in that officer, as such, the exercise of which is made the chief and permanent duty of his office, he thus becomes a Court.
A Court is a tribunal charged, as a substantive duty, with the exercise of judicial power; and a judicial officer is the person appointed to exercise that power. These definitions may not be, and it is admitted are, probably, not complete. But they are sufficiently so, for the purposes of this case. A judge will be none the less a judicial officer because some duties he may have to perform are administrative in their character; nor will an administrative become a judicial officer, simply because some acts which he may be required to perform may be, to some extent, judicial in their character.
[584]*584The duties of Wallace, as a state officer, were substantively, indeed, were entirely judicial, were continuous for his official term, were discharged in the forpi and with the effect of judicial- proceedings in the other Courts of the state.
A word as to the mode in which the city Court is created. The constitution, as we have seen, gives the legislature unrestricted power in the creation of Courts, and points out no mode of filling them with officers, except as to three, viz., the Supreme and Circuit Courts, and justices of the peace. Others, the legislature may create in such, mode, and vest with such portion of the judicial power as, within the provisions of the constitution, is deemed advisable. The judges of these Courts may be created by election or otherwise. And the judges in such Courts will be judicial officers, under the disabilities of the constitution.
In this case, Wallace was a judicial officer under the state, was elected in a manner which, under the unrestricted power of creating Courts conferred by the constitution, the legislature might adopt, and he was ineligible to the office of sheriff.
The powers which are exercised by a city government are, it thus appears, superadded to those exercised by the state in the same locality. The people of towns and cities are governed that much more than are the people of the state generally. This is deemed a necessary incident to a dense population. The powers thus exercised by the city governments are specified in their charters, and none can be exercised beyond the specifications; and to guard against their stepping beyond, an appeal lies to the state Courts, as from the state to the United States. Sometimes the state, by charter, abdicates all power over a particular subject within the city limits, in favor of the city government. Wood v. Mears, at this term
N. B. Taylor, J. Morrison, J. E. McDonald, and A. L. Roache, for the appellant (2).
II. W. Ellsworth, S. Colley, D. McDonald, and A. G. Porter, for the appellee (3).
Per Curiam.
The judgment of the Circuit Court is reversed—that judgment being that the proceedings should be dismissed—and that Court is directed to overrule the motion to dismiss, and to hear and determine the case in accordance with this opinion.
X) Ante, 5X5.