104 S.W. 842 | Ct. App. Ind. Terr. | 1907
(after stating the facts as above). This case comes before this court on the demurrer of defendant to plaintiff’s petition, and the only question at -issue is as to the authority of the clerk of the court, in vacation, to grant letters of curatorship. It is conceded by both sides that the clerk is authorized to grant letters of guardianship in vacation, unde section 3462 of Mansfield’s Digest (Ind. Ter.'Ann. St. 1899, § 2358), but it is contended by defendant in error that this authority does not extend to the granting of letters of' curatorship. Plaintiff in error contends that the general rule is that a curator-ship is a guardianship, limited in its nature, confined to the estate of the minor, and that the term guardianship is broad enough to and does cover the term curatorship, and that, therefore, the authority given by legislative act to the clerk to grant letters of guardianship in vacation gives also authority to grant letters of curatorship. Section 3462 is the only provision of the statute that grants the power of appointment to the clerk, and guardians alone are mentioned. 'The section is as follows: “The clerk of the court of probate, either in person or by deputy,, shall in vacation have power to grant letters of guardianship,
“Sec. 3477. When a minor shall be entitled to or possessed of any estate not derived from the parent who shall be the natural guardian at the time, and it shall be suggested to the court that such parent is incompetent to the care of such estate, or is mismanaging or wasting the same, the court may issue a notice to such person to appear before it at a stated time, and show cause why a curator shall not be appointed or chosen; and, if on due notice ho sufficient cause be shown, the court shall appoint a curator for the management of such estate for the minor, if under fourteen years of age, or, if over that age, admit the minor to choose one in the same manner and subject to the same restrictions as provided for the choice or appointment of guardians for minors over that age.
“See. 3478.- Whenever the court shall be satisfied that it will be for the advantage of minors to appoint a curator of the estate different from the guardian of the person, it shall be lawful to make such separate appointment for minors under fourteen years of age, and for minors over that age to make such separate choice, subject to the approval of the court;*586 and all guardians or curators shall be allowed to prosecute and defend for the minors in all matters committed to the care of such guardians and curators respectively, without further evidence in the several courts of the state.”
In these sections it will be noticed, as above stated, that appointments of curators are provided for by the court, and no mention is made of any authority to make such appointments being vested elsewhere. Where authority to perform some specific act is given by legislative enactment to a court, the power cannot be delegated to some officer of the court, unless authorized by the act. In Broom’s Legal Maxims, 839, it is said: “Nor can an individual clothed with judicial functions delegate the discharge of these functions to another, unless as in the case of a county court judge he be expressly empowered to do so under specified circumstances; for the ordinary rule is that, although a ministerial officer maj’- appoint a deputj'-, a judicial officer cannot.” In Sutherland on Statutory Construction, § 325, it is said: “Sec. 325.. ‘Expressio unius est ex-clusio alterias.’ This maxim, like all rules of construction, is applicable under certain conditions to determine the intention of the lawmaker when it is not otherwise manifest. Under these conditions it leads to safe and satisfactory conclusions; but otherwise the expression of one or more things is not a negation or exclusion of other things. What is expressed is exclusive only when it is creative, or in derogation of some existing law, or of some provisions in the particular act. The maxim is applicable to a statutory provision which grants originally a power or right. In such cases the power or right originates with the statute, and exists only tq the extent plainly granted. The right while inchoate, and the power so far as not exercised, cease, if the statute be repealed, and if the statute provides the mode in which they shall be exercised that mode must be pursued and no other. This conclusion is almost self-evident; for, since the statute creates and regulates, there is no
The judgment of the court below is affirmed.