
    John B. Gerald v. Theodore B. Gerald.
    Where a family meeting is held under the act of 18th of March 1§47, for the emancipation of a minor, the tutor must be cited before the meeting is held.
    Article 62 of the Constitution, which invests the courts with the judicial powers, cannot be extended by implication.
    
      The grant of judicial power, in article 79 of the Constitution, is an exception to article 62. The grant of judicial power therein conferred upon clerks of court does not extend to their deputies.
    The laws of 29th of May, 1846, and 16th of March, 1848, do not confer on deputies the judicial powers vested in clerks by the Constitution. Those acts give no other powers to deputy clerks than those previously vested in them by law.
    APPEAL from the District Court of East Feliciana, Stirling, J.
    
      Roberts and Thompson, for plaintiff,
    contended: The first point is, as to the service made upon the tutor. It is contended, that service should have been made upon him previous to the meeting of the family. The authority recited to sustain this point is 1 N. S. 551. We also call attention to the same authority as having no sort of bearing upon the case at the bar. We contend, however, that his presence at the time of the homologation of the proceedings, and acquiescence therein, cured the error, if it was one, and bars him from raising the point now. If such a mode of proceeding were allowed in our courts, for parties to acquiesce in all the proceedings that are had in any case until after its final judgment, and then to prevent their execution, and raise quibbles of this character, the courts, instead of being the defence of the oppressed, would be the most potent agent in the hands of the oppressor. For various and palpable reasons, this court will readily see that such a course could not be allowed.
    The second objection is, that no under-tutor was present at the family meeting. Now, the fact was proved most clearly before the court, when the rule to show cause why distringas should not issue was made absolute, that the under-tutor resided out of the State at the time these proceedings were had. But, admitting the position that he was not absent, and that if he was, an under-tutor ad hoc could not be appointed to him, what weight is it entitled to in this court ? It was never contemplated by law, that an under-tutor should be present at family meetings, provoked by the minor himself by virtue of a peculiar law made for his special benefit, as the one under which this emancipation was sought. A mere reference to the act itself refutes such a position. See acts of 1847, p. 65. Such family meetings being provoked by minors themselves, the necessity for the under-tutors does not exist. For the powers and duties of under-tutor, see C. C., 301, 302, 303; 1 N. S. 462; 2 L. R. 145; C. N. 420, 442; 11 L. R. 189; 4 L. R. 389; 10 L. R. 328. We are happy that this point is made, as it is important the question should be settled, and settled now. The appointment of minor’s counsel under-tutor ad hoc is an objection altogether technical; for we cannot conceive how the duties of an under-tutor and an attorney would clash. The one, sworn to protect the interest of his client; the other, his ward.
    The third objection, that a judgment by default, should have 'been taken, -we deem unnecessary to notice, further than to invite the court to an examination of the authorities cited by defendant’s counsel, which show that the doctrine does not apply, even by the most latitudinal construction, to a case like the present.
    The objections to the legality of these proceedings, on the ground that the deputy clerk happened to sign the papers and orders, is, indeed, a novel one. We have been accustomed, in this State at least, to regard the act of the deputy, either of the clerk, sheriff, or notary, as being the act of the clerk, sheriff, or notaiy, himself. To unsettle this principle would be dangerous to the interests of every party litigant in the State. We have examined the authorities referred to by defendant’s counsel, and find nothing to sustain the position whatever. We refer to the same authorities, and submit them for construction and decision.. It was certainly contemplated, that the clerk should have the power of calling family meetings to emancipate minors. Such would be the most natural construction which could be placed upon the act of 1846. The language of the statute is directory, as it is in all cases of a similar nature. The petition for family meetings in all cases must be addressed to the' judge, though the same may be ordered by the clerk, or his deputy. The clerk has many powers of a judicial character given him by the act of 1846, and yet all petitions must be addressed to the judge, and he is to decide all points where any opposition is made. Such being the case, why make this case exclusive of that rule ? We see no good reason why the subsequent action of the judge in this case is not curative, if he should have made the order; nor why the clerk is not fully authorised to order the meeting.
    
      
      E. T. Merrick, for defendant,
    contended : In this case, defendant’s counsel will merely call the attention of the court to the points of law raised by the assignments of error, and in the same order, viz.: 1st. The record shows that, March 21st, the family meeting was ordered to be held nn the 28th day of -March, 1848. The .citation was not served on defendant until April 1st, 1848. A fair construction of the act of 1.847, p. 65, s. 2, requires the .citation .to be served previous to the holding of the family meeting. Cause is to be shown to the family meeting as well as to the judge. Their (the family meeting’s) advice is worthless, unless they are informed of the facts. See 1 N. S. 551, as to the necessity of citation. 2d. There is nothing to show that the under-tutor was absont.' In truth he was and still is in the parish. His presence (or at least that of the tutor under the act of 1847,) was indispensable to the validity of the family meeting. C. C. 302. An under-tutor ad hoc is an office unknown to our law- If one existed, plajnti.ff’s attorney could not, as was sought to be done in this case, act contradictorily with himself, and approve for the opposite party or oppose a proceeding which his client was provoking. 3d. The judgment by default or an answer was indispensable to a decree of emancipation, for want thereof ,th.e proceeding apd judgment qr.e null ip this case. p. P. art. 606, No. 4. Ibid, 60.9, 359. Bird v. McMicken, 5 ,N. S, 515. 6 N. £. 212. 7 N. S. 287. 8 N. S. 284. Ibid, 302, Calvet v. Calret et al. 4th. The foregoing points b.eing established, it must follow that ajl the .subsequent, proceedings were null. Sublato fundamento cadit opus. 5th. The ninth section of the act of 1846> P.. 65, did pot contemplate investing the clerk with power to condemn ex parte. The order certainly could not be made except after citation. In this case it was made by the deputy clerk before citation.
    The act of J846, p. 63, conferring judicial power in certain cases upon clerks, can never be held to confer the same power upon their deputies. This act gives to the clerks a large part of the judicial power of the late parish judges. The most important interests of the parish are thus conferred upon them. The Constitution authorises this judicial pow.er to be confided to clerks and not deputies. Art. 79. This being an exception t.o article 62, which invests the Supreme Court, the District Court, and Justice of the Peace, with judicial power, cannot be extended to any other .officers except those specified, and whose election had b.een .expressly provided for by the Constitution. Article 82. The statute of 1846, p. 67, sec. 18, and the act amendatory thereto, of 1848, p. 116, do not confer on deputy clerks the judicial power given to the clerks, but simply ‘‘the power now vested bylaw in deputy clerks.” Yariops reasons will occur at once .to your honors why this very great power was not .conferred on the deputies, and why they were left with the simple power which they had possessed prior to said act of 1846. As to the distinction between clerk and deputy, under act of Congress, 1790, see S.ampson & Qverend, 4 Bib. 409, 1 Greenleaf, No. 5,06. See also ,C. P. 7.82,
    6th and 7th. No judgment by default or contestatio litis having been formed either upon the petition to file an account or for a writ of distringas, the order to file an account, and the decree for and writ of distringas, were also erroneous. 4 L. R. 13.
    8th. For the foregoing reasons, we contend that all the proceedings in the court below ought to be reversed and annulled.
    We further contend, that, inasmuch as under the act of 1847, p. 6.4, ss. 1 and 2, the district judge alone was the person to whom the petition is to be presented and who alone is authorised by said act to call a family meeting j and inasmuch as said family meeting in this case was ordered by the clerk, that, therefore the whole proceedings are null, apd the petition, instead of being sent back for further proceedings, ought to be dismissed. See a.ct 1829, s. 2, Bullard .and Curry, p. 582, and act 1847, p. 65, s. 2.
   The judgment of the court was pronounced by

Rost, J.

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, praying that his tutor might be ordered to account. The order on this petition was made by the clerk’s deputy. The defendant took no notice of it, and after the operation of the legal delays, the plaintiff obtained a rule to show cause why a distringas should not issue against him to compel obedience to the order of the court. On the plaintiff’s motion to make that rule absolute, the defendant appeared and excepted to the proceedings, on the ground that they were illegal and void ; that the plaintiff has never been legally emancipated, and that, if he had been, he could not stand in judgment. These exceptions were overruled ; and the defendant has appealed from the decree making the rule absolute.

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, &c. Under this act, it has been uniformly held, that the clerk who certifies the record must be the clerk of the court himself: the certificate of his under-clerk, in his absence, or of the clerk of any other tribunal, is incompetent for that purpose. X Greenleaf, No. 506, and cases there cited.

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.

Slidell, J.,

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, been a custom coeval with the American government of the country; and even were we to allow that it originated in error, the maxim would then (if in any case) apply that communis error facit jus. I am of opinion with Judge Martin, that this custom has been sanctioned by the Legislature, in the act relative to deputies of the officers of our courts.”

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 conflict with such a principle, it would certainly be the duty of a judge to construe the former with a jealous strictness.

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.  