| Minn. | Jul 15, 1851
By the Court
The object of this application was to obtain a writ of Prohibition to restrain the Judge of Probate from issuing writs of Habeas Corpus, directed to the Commandant at Fort Snelling, a United States Military Garrison — commanding and requiring him to have before said Judge of Probate, certain soldiers under his command, regularly enlisted in, and belonging to, the United States Army.
The relator raised, for the consideration of the Court, two questions, both going to the jurisdiction of the Probate Judge.
First. That the Judge of Probate has no power or authority to isssue writs of Habeas Corpus in any case.
Second. That even does he possess such power, being a mere Territorial officer, he cannot enforce the execution of his precepts on the Military Reservation at Fort Snelling, such territory being under the exclusive jurisdiction of Congress.
We find it necessary to rule the first proposition only, that going to the gist of the application. It is the unanimous opinion of the Court, that Judges of Probate are invested with no powers which authorize them to issue writs of Habeas Corpus. The Judge of Probate in the present case, assumes to derive his authority from an act of the Territory of Wisconsin. The legislative Assembly of that Territory created an officer known as a Swpreme Court Commissioner, and invested him (how properly, it is unnecessary for us to say) with all the powers which a Territorial Judge might exercise at chambers.
Subsequently, however, that officer was abolished, and the powers he exercised, conferred on the Judges of Probate of the several counties.
. To be entirely intelligible, it is pi’oper here to state that the act of Congress organizing this Territory, provides “That the “laws in force in the Territory of Wisconsin, at the date of the “admission of the State of Wisconsin, shall be valid and oper- “ ative therein so far as the same be not incompatible with the provisions of this act: subject, nevertheless, to be altered,
Under the provisions of the laws of Wisconsin, as they existed at the date of the organization of this Territory/if not incompatible with any Federal law, the Judges of Probate would have possessed unquestioned authority to issue writs of Habeas Corpus, and to have done all the other chamber business of a United States District Judge; but at the firsPsession of the Legislature of this Territory, an act was passed, which, settling this question, took from the Judges of Probate these powers. That act created a new Court — a Court of Becord, with new powers and duties- — a Court which entirely superseded in its powers and duties all the functions of the Judges of Probate under the laws of Wisconsin. This act created a^Court of Probate. It defined its powers : it prescribed its duties. It covered the whole ground of the duties of a Probate Court. It gave it exclusive jurisdiction over the estates of decedents, minors, lunatics and habitual drunkards. It went, however, no further. It gave no power to issue writs of Habeas Corpus.
That act recited verbatim et literatim many of the sections and provisions of the act of Wisconsin. Why was this, if this act of the Territory of Minnesota was only intended as a supplement to the act of Wisconsin regulating the duties of Judges of Probate ? Why recite section after section — why recapitulate in the same words, duty after duty prescribed by the laws of Wisconsin, if this act was not intended to supersede and repeal the other ?
There is no reason. There could be no reasón for such a course; and we are satisfied that our own act did repeal and supersede the act of Wisconsin; and that the duties assigned to a Supreme Court Commissioner do not exist in the Judges of Probate here.
But there is another reason for taking this view, and one-which is unanswerable.
That is, the distinction made in the creation of our Courts of Probate.
The act of Minnesota regulating the duties of Courts of Be-cord, creates, by express and appropriate terms, a Oowrt of Probate, which shall be a Oowrt of Record. The Court of'
This question can be answered but one way. — No! It is not necessary that an actual repealing clause should be used to discontinue or supersede an existing enactment. The creation of a new Court, as in the present case, with new duties and powers, but at the same time embracing all the powers and duties theretofore exercised by an inferior tribunal, is equivalent to a repeal: it is a substitution of one for another tribunal.
In this case, the office of the Judge of Probate, as it existed under the laws of Wisconsin, was in effect abolished by the creation of a new Court, organized upon entirely different principles: its duties covering the ground of the legitimate object of a Court of Probate. But there is no.necessity to extend this reasoning further. Our Court of Probate was created by our own statute. When it came into existence, its predecessor expired. Before that time, neither here nor in Wisconsin, did such a tribunal exist. And being the creature of our own peculiar statute — the offspring of our own Legislative body cannot claim prerogatives or powers drawn from any other paternity, without express legislation conferring such powers and prerogatives.
The writ of Prohibition is allowed.