5 La. 242 | La. | 1850
Lead Opinion
The judgment of the court was pronounced by
The plaintiff, who is a minor over eighteen years of age, applied to the district court to be emancipated, under the act of 1847, providing for the emancipation of minors. The clerk of the district court made the order for the family meeting required in such cases, and appointed an under-tutor ad hoc, to attend said meeting, on the suggestion of the plaintiff that his under-tutor had left the State. The family meeting advised the emancipation, and its proceedings were homologated. The plaintiff then presented another petition,
The following grounds of error are assigned on the appeal : 1st. The defendant was not cited till after the family meeting had been held. Under the act of 1847, he should have been cited before that time. 2d. The act of 1846 which confers certain judicial powers upon clerks does not confer the same powers upon their deputies.
These grounds of error are both well founded in law. The citation, with a copy of the petition and of the order made thereon, should have been served upon the tutor before the family meeting was held, as has been the uniform practice under the act of 1829, on the same subject-matter. Family meetings have not the means of arriving at correct conclusions, unless they are informed of the facts within the knowledge of the tutor. It is stated, in the procés verbal, that the tutor was cited, but did not appear at the meeting. This is an error: the citation was served four days after the family meeting had been held.
Article 79 of the Constitution authorises the clerks of the district courts to exercise important judicial powers. This is an exception to article 62, which invests the Supreme Court, District Courts,- and Justices of the Peace with the judicial power of the State, and cannot be extended by implication to any officers not specified in the article. The grant of judicial power is made to an officer recognised by the Constitution, and elected by the people; not to the deputies whom he appoints and dismisses at pleasure. The organic laws of 1846 and 1848 do not purport to confer on deputy clerks the judicial powers vested in clerks by the Constitution. They give them no other powers but those previously vested by law in deputy clerks.
It is urged, that under the former organisation of the judiciary, clerks were entrusted with certain judicial powers which their deputies uniformly exercised, and that the framers of the Constitution and the Legislature of 1846 must be presumed to have known and contemplated the ancient practice, legislation, and jurisprudence. A majority of the court do not consider this a legitimate presumption. The only act giving judicial powers to clerks under the old system was passed in 1828. It speaks of clerks alone; deputy clerks had no authority to act under it; and we cannot, without an express declaration of the Convention and of the Legislature, presume that they intended to sanction and authorise that which is wrong and illegal. If the wording of the 79th art of the Constitution left it doubtful whether the powers it confers were extended to deputy clerks, the former practice and the former jurisprudence of the State might assist us in ascertaining the intention of its framers. But, in the absence of all grant of judicial power to deputy clerks, there is no room for interpretation.
This distinction between the clerk and his deputy is not peculiar to our jurisprudence, An act of Congress provides, that the records and judicial proceedings of the courts of any State shall be proved or admittéd in any other court in the United States, by the attestation of the clerk, and the seal of the court annexed,
There being no emancipation, and no legal order to account, the defendant is not in default.
For the reasons assigned, it is ordered, that the judgment in this case be reversed, and the case remanded for further proceedings according to law; the plaintiff and appellee paying the costs of this appeal.
Dissenting Opinion
dissenting. In consequence of the abolition of the parish judge and probate court system, it was obvions to the framers of the Constitution, that there would be a serious accumulation of the business of district judges. To prevent this accumulation from becoming too onerous, and to facilitate the administration of justice, it was provided by article 79, that “ the Legislature shall have power to vest in clerks of courts authority to grant such orders, and do such acts as may be deemed necessary for the furtherance of the administration of justice, and in all cases the powers thus granted shall be specified and determined.” Under this constitutional grant of power, the Legislature enacted the Statute of 1846, which is entitled, “ An act-to carry into effect the judiciaiy system.” In the various sections of this statute, in which power is conferred to grant specified orders and do enumerated acts, clerks only are mentioned. The only section which speaks of deputy clerks is the 18th, where it is said that each of said clerks shall have power to appoint as many deputies as he may judge necessary to be approved by the district judge, and sworn in by him in open court or in chambers ; that the clerk shall be responsible for the official conduct of said deputies, and said deputies shall have all the powers now vested by law in deputy clerks.
There is an ancient, and I think a very sound rule of interpretation: Si de interpretations legis quéeratur, in primis inspiciendum est quo jure civitas retro in ejus modi casibus usa fuisset.” It is familiar to eveiy one that, under the former organisation of the judiciary system, during a very long course of years deputy clerks had been in the practice of discharging all the duties performed by their principals. In Kirkman v. Weyer, nearly thirty years ago, the question was, whether the clerk of the district court is authorised by law to appoint a deputy with power to administer oaths, and issue executory writs ; and it was urged, that the exercise of public offices by deputy, was opposed to good policy, contrary to justice, and repugnant to the spirit of our Government. That, if permitted in any case, it must be by express law; and that, previously to the act of 1817, no one could pretend that power was granted by law to clerks to administer oaths by deputy. Martin, J., observes: “ Clerks of courts have had deputies' ever since the establishment of the American Government in this countiy; and the act of 1817 appears to have recognised such deputies. The clerk and the sheriff are the only officers which the Legislature may have had in view under that act. The attorney general is not an officer particularly attached to any court. It seems to me to be too late now to call in question acts done by a deputy clerk. A deputy clerk may do all acts which his principal can.” And Matthews, J., said: “I believe it may be laid down as an. undeniable fact, that the clerks of the- different courts of the late Territorial Government were in the constant habit of acting by deputy wherever their convenience required it. The same practice has prevailed under the State Government; without its legality or propriety having been ever before called in question. It has, then,
The ancient usage of the State was impliedly sanctioned in 1825 by the 782d article of the Code of Practice, which declares, “ Clerks may appoint deputies, for whom they shall be responsible, and who shall take an oath before the court to fulfil well and faithfully all the duties entrusted to the clerk whom they represent.”
The system of entrusting a portion of the judicial power to clerks of court was not an entire novelty. In 1828, it was enacted by a Legislature, acting under a Constitution which contained no express provision like the 78th article of our present Constitution, that the orders of arrest, attachment, sequestration, provisional seizure and injunction, as well as the commissions to take the deposition of witnesses in civil matters, may be issued, either by the judge before whom the cause is brought, or by the clerk of his court: provided that the parlies applying for the same, comply with the formalities prescribed by law to obtain any one of the above-mentioned orders. It will not be denied that these functions involve the exercise of judicial power. And it is to be observed, that the grant of power is to clerks ; deputies are not mentioned.
Now, under this legislation it was the constant and uniform practice, during along series of years, in our Courts at New Orleans, (of the practice in the country courts I have not the same knowledge,) for deputy clerks to grant orders of attachment, arrest, and sequestration : orders specified in the 1st section of the act of 1846. No one, I believe, questioned the practice. It was assented to by the courts and the profession. Is it not reasonable to suppose, that the framers of the Constitution and the legislators of 1846 had in contemplation the ancient practice, legislation, and jurisprudence 1
To deny deputies the same extent of power, with reference to their principals, which they exercised without question, under the former judiciary system, seems pro tanto to defeat the purpose of the Constitution and of the act of 1846 ; which, as I have already suggested, was to prevent too great an accumulation of labor upon the district judges, and to promote the speedy and convenient progress of justice. If the interpretation which I maintain be not the correct one, those facilities, in several cases, are less now than they were before; and deputy clerks, who, under the old system, could order arrests, attachments, sequestrations, provisional seizures, and commissions, are now without authority to do so.
I do not say that the 18th section of the act of 1846 is entirely free from ambiguity; but I consider it susceptible of being construed as meaning, that the powers and functions of deputy clerks should be the same as they had formerly been; that is to say, that they should be capable of fulfilling all the duties of which the clerk is capable. C. P. 782.
In considering that a clause in a State Constitution, and the action of the Legislature under it, should receive a liberal interpretation, I wish not to be misunderstood. There are cases in which fundamental principles of truth and right may be involved: principles which do not owe their existence or their sanction to the Constitution. If a case should arise in which an interpretation of the Constitution or a statute should be invoked, which would bring them
In conclusion, I may add, that as far as I have been able to ascertain, deputy clerks have, under the new judiciary system, been in the habit of exercising all the functions and powers of clerks, as they did under the old system. This contemporaneous exposition is entitled to much weight. The question before us is important for the past as well as the future.