
    Case 47 — ON PETITION FOR RULE
    April 13.
    Smith v. Cochran.
    ON RULE AGAINST THE HON. T. B. COCHEAN, CHANCELLOR OF THE LOUISVILLE CHANCERY COUET.
    1. Mandate of the Court of Appeals enforced by rule against THE CHANCELLOR of the Louisville Chanoery Court___After the Court of Appeals had declared void an order of the chancellor of the Louisville Chancery Court removing the commissioner of said court, and after the said commissioner had been restored to his office, the chancellor, against the protest of said commissioner, made an order referring a suit for the settlement of a decedent’s estate to a special commission®’, before whom the creditors were required to prove their claims.
    The commissioner sued out a rule in the Court of Appeals against the chancellor to compel the execution of the mandate of the Court of Appeals by the reference of said suit to said commissioner, in compliance with said mandate.
    
      On hearing the rule, the Court of Appeals by a peremptory order directed the chancellor to set aside the order referring the case to the special commissioner.
    3. The chancellor of the Louisville Chancery Cowrt has no authority to refer the settlement of estates of deceased persons to a special commissioner against the objection of the commissioner of said court.
    Section 804 of the Civil Code controls section 467 in so far as the latter applies to the Louisville Chancery Court.
    3. The second section of “ an act to require master commissioners to take an oath for the faithful performance of their duties,” approved March 5, 1867, does not apply to the commissioner of the Louisville Chancery Court. (1 Session Acts, 1867, page 64.)
    4. Orders of reference to a commissioner are ministerial acts of the court. — As the Civil Code imperatively requires the order of reference to be made in all cases for the settlement of estates of deceased persons, such orders are ministerial and not judicial acts.
    5. The act of the chancellor of the Louisville Chancery Court in appointing the special commissioner in this case being substantially a refusal to execute a mandate of this court, the proceeding against him by rule is proper.
    
      Bullock & Anderson, I. & J. Caldwell, . . I......For Petitioner, Muir & Bijur, . . . J
    CITED
    Act of 1835, 3 Statute Laws, page 137.
    Act of 1835, 3 Statute Laws, page 161.
    Revised Statutes, 2 Stanton, 140.
    Civil Code, sections 467, 804.
    Act of 1865, Myers’s Supplement, page 564.
    Act of 1870, Session Acts, page 451.
    T. B. Coohran,.........For Respondent,
    Civil Code, sections 467, 804, 810, 405, 424.
    Act of February, 1839, 2 Statute Laws, 240.
    Note. — See cases of Smith v. Coohran and Commonwealth and Smith v. Robert Cochran, reported in this volume, pages 147 and 154. — Rep.
   JUDGE LINDSAY

delivered the opinion oe the court — Judge Hardin dissenting.

On the 19th of March, 1870, the Hon. Thos. B. Cochran, chancellor of the Louisville Chancery Court, made an order removing from office Thomas P. Smith, the commissioner of said court. From that order Smith prosecuted an appeal, and upon hearing it was decided by this court “that the chancellor had no jurisdiction over the office of commissioner, but only a supervisory power over his conduct.” The order appealed from was declared void, and the cause remanded with instructions to allow Smith to “perform the duties and enjoy the privileges” of his said position without disturbance.

Subsequent to the filing of this opinion and mandate the case of Hoern's adm’r v. Doern’s heirs and creditors, pending before said chancellor for the settlement of the estate of the decedent, was referred to a special commissioner, before whom the creditors were required to prove their claims. Smith, who was in court, protested against so much of said order as referred the cause to the special commissioner, claiming that by virtue of his office he is entitled to have all such actions referred to him, and to receive all fees arising therefrom. His protest was disregarded, and for remedy for this supposed wrong he filed his petition in this court, and procured a rule to be issued against the chancellor requiring him to show cause why he thus refused to obey the mandate in the case of Smith v. Cochran, before set out.

The chancellor by his response admits the facts relied upon by Smith, but denies that, as matter of law, the commissioner of his court has the right to demand that actions for the settlement of the estates of deceased persons shall be referred to him, and insists that in such proceedings it is within the power of the court to appoint a special commissioner, before whom such indebtedness shall be proven.

This is the sole question involved in this controversy, and upon its determination the action of this court must depend.

By section 12 of the act establishing the Louisville Chancery Court (3 Statute Laws, 157), the chancellor of said court was authorized and empowered to appoint one or more masters in chancery, whose duty it should be to state all accounts referred to them; to make and execute deeds of conveyance; and to do and perform all other such acts as might be required of them. Section 2 of the act of February 20,1839 (3 Statute Laws, 240), required all courts in which bills in chancery for the settlement of the' estates of deceased persons were pending to refer the same “ to a master commissioner, to ascertain and report the estate of every description, and to ascertain and report the debts against the estate,” etc. This act was general in its application, and as it was in nowise repugnant to or inconsistent with any of the provisions of the act establishing the Louisville Chancery Court, was applicable to and of necessity regulated all such proceedings in that court. No change was made in the law upon this subject until 1851, when the Civil Code of Practice was adopted.

Section 703 of the Code as originally adopted (which section is part of the chapter regulating proceedings in the Louisville Chancery Court) provides that “a commissioner shall be appointed by the court, and shall hold his office during its pleasure. He shall discharge the duties of the present masters of the court, and may receive the fees therefor which are authorized to be taken by them.” At the time of the adoption of this provision of the Code it was the duty of the masters of that court to ascertain and report the estate of deceased persons, as well as the debts against the same, whenever such reports become necessary and proper by reason of the institution of suits in said court for the settlement of such estates, and the court was required, to refer all such cases to the master, for the purposes before indicated. This section had the legal effect of creating the office of commissioner for the Louisville Chancery Court, of substituting the incumbent for the then masters, and of devolving upon him the performance of all such duties as were, under existing laws, being performed by them.

In 1854 the Civil Code of Practice was amended, and then for the first time was adopted the section designated in the amended Code as No. 467, which provides that in all actions for the settlement of the estates of deceased persons the court shall make an order for the creditors of such decedents to appear before a commissioner, to be appointed by the court, and prove their claims by a certain day to be named in the order,” etc.

A literal interpretation of the language used in this section might perhaps imply that the commissioner before whom the claims against the estate of the decedent were to be proven should be appointed by the court at the time the order of reference is made; and this is the construction the chancellor insists it should receive.

In the settlement of this controversy we do not deem it necessary to determine this question, as we are of opinion that so much of section 467 as provides for the appointment of a commissioner is in direct conflict with section 804, which applies specially to the Louisville Chancery Court, and that the latter, and not the former, must control. It is true that the chapter of the Code relating exclusively to the Louisville Chancery Court was adopted in 1851, and the amendments, including section 467, were not enacted until 1854; but it does not necessarily follow because of these facts that the latter are to be regarded or treated as the latest expressions of legislative will, and that all the provisions of the original Code repugnant to or in conflict with the same were by their adoption modified or repealed.

Upon an examination of the act adopting the amendments (1 Session Acts, 1853 and 1854, page 55) it will be observed that the General Assembly provides that the Code of Practice in civil cases as amended shall be printed under the supervision of the commissioners, with the amendments arranged in their appropriate places; that the number of the sections in the original Code shall be changed to the number each section should properly receive under that act; and finally “that the Code of Practice in civil actions as herein amended shall regulate the procedure in all civil actions and proceedings in the courts of this commonwealth, and that all laws coming within the purview of its provisions shall be repealed.”

By this enactment the Civil Code as then amended was readopted by the legislature as a system, the whole of it taking effect as one general and continuous statute; and it must be so construed as to give force and effect to each and all of its provisions. To accomplish this end the chapter specifically devoted to the regulation of proceedings in the Louisville Chancery Court must be allowed to control the general provisions of the Code in all cases in which there is a conflict between them. A different rule of construction would have the effect of nullifying or abrogating almost the whole of said chapter.

If section 467 is to be regarded as repealing or controlling section 804, in so far as the latter makes it the duty of the commissioner to ascertain and report the assets and indebtedness of the estates of deceased persons in proceedings for the settlement of the same, section 424 takes from the commissioner the right to make deeds of conveyances, and subdivision 1 of section 624 deprives him of the right expressly conferred upon him by section 809 of taking depositions within the city of Louisville. By such rule section 810, authorizing the Louisville Chancery Court to cause personal property to be sold upon a credit of four months, and real estate of over the value of three thousand dollars upon a credit of two years, is abrogated by section 405, which imperatively requires personal property to be sold upon a credit of three months, and real estate upon a credit not exceeding one year.

But it is useless to multiply such illustrations. We conceive that the correctness of the rule of construction before indicated can not be successfully questioned. We think this conclusion is fortified by the act of June 3, 1865, as well as that of March 17, 1870. Both of these acts expressly recognize the existence of the office of commissioner of the Louisville Chancery Court as created by the Civil Code, and both make important regulations concerning the rights and duties of the incumbent; one of them fixing his term of office, and providing for his impeachment or dismissal therefrom, and the other that he should no longer be required nor permitted to act as receiver for the chancery court.

Section 2 of an act approved March 5, 1867 (1 Session Acts, 1867, page 64), authorizes the courts to appoint a special commissioner in any case; and if the same applies to the Louisville Chancery Court, it not only authorizes the action of the chancellor in the matter under consideration, but in effect places it within his discretion to deprive the commissioner of the power to perform any of the duties of his office, except to make deeds and take depositions. A careful analysis of the act, however, will show that it was not intended to apply to said court. It is entitled “ an act to require master commissioners to take an oath of office, and execute bond for the faithful performance of their duties.” It provides “that every master commissioner in chancery shall ex officio act as receiver of the court;” that he shall take an oath of office, and execute a bond conditioned as therein provided. We may presume that the legislature intended by this enactment to remedy some supposed defect in our system of procedure. The defects sought to be remedied existed as to master commissioners, but not as to the commissioner of the Louisville Chancery Court. He was already required to take an oath of office. He was at the time of the passage of the act the receiver of that court, and was required as such to execute bond. He held his office for a term fixed by the law, and it was not within the power of the' chancellor to remove him therefrom, nor to deprive him of the rights, privileges, and emoluments incident to the same. He is not a master commissioner in the legal acceptation of that term. It is true that he is required to perform such duties as are usually performed by this class of officials, but his office was created by a statute different from that authorizing the appointment of masters. He holds it for a different and longer term; and prior to the adoption of the act under consideration he was clothed with all the powers conferred by the same upon masters, and was already acting under all the safeguards and restrictions thereby imposed upon them. His office has a distinctive name, that of “Commissioner of the Louisville Chancery Court.” And as the same is not mentioned either in the title or the body of the act of 1867, and as said act states specifically that the officers to be affected thereby are the master commissioners of the various courts, neither the letter nor the spirit of the same will authorize its application to the commissioner of the Louisville Chancery Court.

Without further elaboration, we are constrained to conclude that the suit of Doern’s administrator v. Doern’s heirs and creditors should have been referred to Commissioner Smith, and that the refusal of the chancellor to make such reference to him instead of the special commissioner was in effect a refusal to allow Smith to perform one of the duties and enjoy one of the privileges of his office. Holding, as we do, that the law designates the particular officer to whom all such suits shall be referred in the Louisville Chancery Court, and as the Code imperatively requires the order of reference to be made in all proceedings for the settlement of the estates of deceased persons, such orders are ministerial and not judicial acts; and the action of the chancellor in the case under consideration being substantially a refusal to execute a mandate of this court, the proceeding against him by rule is proper. Considering, however, the disconnected and in some respects incongruous legislation by which the rights, duties, and privileges of the officer complaining are defined, and the assurance upon the part of the chancellor that he has been governed in his official action in this matter by his convictions of right and duty, we are satisfied that no contempt of this court was intended by the order complained of.

In view, however, of the right of the commissioner to relief, we feel that our duty demands that a peremptory order be made by this court directing the chancellor of the Louisville Chancery Court to set aside the order referring the case of Doern’s adm’r v. Doern’s heirs and creditors to the special commissioner, and for further proceedings touching the reference of said cause in conformity with the conclusions herein expressed. Such order is therefore directed to be entered upon the order-book of this court.

Not deeming it necessary or proper further to enforce the rule, the same is discharged. The respondent, however, must pay the costs of this proceeding.

JUDGE HARDIN

delivebed the eollctwtng dissenting opinion.

This somewhat unusual proceeding against the chancellor of the Louisville Chancery Court may be regarded as an episode to the action of that officer in ordering the removal of Thomas P. Smith from the office of commissioner of that court, and which, on the appeal of Smith, was reversed by this court; it deciding, in effect, that the chancellor had no jurisdiction or power to remove the commissioner, “but only a supervisory power over his conduct,” and remanding the cause with instructions to allow Smith “ to perform the duties and enjoy the privileges of the office without disturbance by Robert Cochran,” whom the chancellor had attempted to appoint as commissioner on the removal of Sinith.

After the decision of this court, the chancellor promptly set aside his order for the removal of Smith and the appointment of his successor, and, as now appears, has since recognized Smith’s right to discharge the duties and enjoy the privileges of the office, so far as the law governing the relative rights and duties of the court and its commissioner, as construed by him, made it his imperative duty to do so; but assuming nevertheless to have in certain cases a discretionary power to devolve on special commissioners of his own appointment privileges and duties which by particular orders, if not by mere reference to the master, might have been exercised by him. And on the 14th day of October, 1870, a motion being made in the suit of Jacob Doern’s adm’r against his heirs and creditors, involving the settlement of Doern’s estate, to refer the cause to the commissioner for a report of debts against the estate, the chancellor, refusing to refer the cause to the commissioner, but deciding that he had authority to refer it to a special commissioner to be appointed by him in the order of reference, referred the cause to John L. Marshall, and appointed him commissioner for the purpose aforesaid; Thomas P. Smith objecting at the time, and claiming that by virtue of his office as the commissioner of the court he had the legal right to have the order of reference made to him, and disputing the right or power of the court to make the order appointing Marshall and referring the cause to him.

Smith, on his petition to this court complaining of said action of the chancellor as a refusal to obey the mandate of the court in the case of Smith v. Cochran, and upon notice to the chancellor, has instituted this proceeding by rule against him to show cause, if any he can, why he has not obeyed and shall not in future obey said mandate; and the chancellor having responded to the rule, basing his defense upon his asserted power to appoint commissioners in suits for the settlement of estates of deceased persons, as well as a general denial of the imputed violation of the mandate of this court, a trial of the case has resulted in a decision by a majority of this court adverse to the action of the chancellor, complained of by the rule.

After a careful consideration of the questions of law involved, ably discussed as they have been by the eminent counsel for Smith on the one side and by the chancellor in person on the other, I entertain views of those questions which I can not reconcile with the opinion of the majority of the court, and am • constrained by a sense of duty and of the importance of the case respectfully tp express the reasons which compel me to dissent from that opinion.

Waiving the question whether, if it be true that the chancellor erred in making the reference to Marshall instead of the commissioner of the court, the error was not one of judgment only, committed in the exercise of the discretion of the court in construing the law, which might have been corrected by this court on appeal; but not importing a willful violation of its mandate or a refusal to obey it, I will proceed at once to consider the question of power to appoint another than the commissioner of the court in the case referred to; the solution of that question being of much importance, and apparently desired by both parties.

The Louisville Chancery Court was established by an act of the legislature, approved February 28, 1835 (3 Session Laws, 157), the 12th section of the act providing that “the chancellor shall have power and authority to appoint one or more masters in chancery, whose duty it shall be to state all accounts referred to such master, and to do and perform all such acts as may be required of him; and a master in chancery shall execute all deeds of conveyance under the decrees and orders of said court that are usually made by a commissioner; and the chancellor may authorize a master to make all necessary proof which may be required in stating an account, or any other matter to him referred, and may require him to report the same to court.”

As the express power thus declared'of appointing masters or commissioners in chancery for the convenience and assistance of courts of equity already existed, and had been long exercised by those courts, the statute may be said to modify or regulate the duty of the court respecting commissioners rather than confer a power which it would have had as an incident of its jurisdiction. And although the 14th section of the act provided for the settlement of the accounts of personal representatives in the Louisville Chancery Court, and such settlements may have been made by the commissioners, as suggested in the argument, until the jurisdiction of the county court for that purpose was restored, we must look to the general law of the state for any express requirement that courts of chancery should refer suits for the settlement of the estates of deceased persons to the commissioner of the court or, in other words, “ a master commissioner.” (3 Statute Laws, 240.) It may also be observed that while the original act establishing the chancery court and other statutes relating to it essentially changed the general rules of practice in their application to that court, or excluded them from it, its jurisdiction before the adoption of the Code of Practice as well as since has been mainly governed by the general law of the state.

Section 775 of the Civil Code provides that “the-jurisdiction of the Louisville Chancery Court is not affected by this Code, except as provided in section -770. The proceedings in that court shall conform to the provisions of this Code respecting actions by equitable proceedings, subject to the modifications contained in this chapter, which are applicable to that court alone.” Neither are the provisions of that chapter, modifying the general enactments of the Code as applicable to the chancery court, nor is any subsequent enactment of which I am aware, repugnant to the general provisions of chapter 4, title X., of the Code, for regulating the settlement of estates of deceased persons. Therefore, so far as that chapter may operate to supersede or modify the previous general law of the state in relation to the appointment of commissioners in suits for the settlement of estates, it must be equally applicable to the Louisville Chancery Court and all other courts having the same general jurisdiction in such cases.

Section 467, embraced by said chapter, provides that “in all actions for the settlement of the estates of deceased persons the court shall make an order for the creditors of such decedents to appear before a commissioner to be appointed by the court, and prove their claims by a certain day to be named in the order.”

According to the plain import of this section of the Code, the conclusion is inevitable that the reference may be made to “a commissioner to be appointed by the court” at the time of making the reference; and there is nothing in the section indicating an' intention that the master or commissioner of the court alone shall be the person so to be appointed. But it is said, in effect, that as section 804 of the Code provides that the commissioner of the Louisville Chancery Court “shall discharge the duties of the present masters of the court,” and under the general law of the state regulating the administration and settlement of estates it was the duty of the several courts of equity, including the Louisville Chancery Court, to refer causes prosecuted under that law to “ a master commissioner,” it is still the duty of the latter court to so refer such cases, although as to all other courts the general law imposing that duty be abrogated or changed by section 467 of the Code; and that a different construction would involve the nullification of the authority of the commissioner to take depositions, and many of the rules of practice governing the chancery court which are inconsistent with the general provisions of the Code regulating procedure in the courts of the state, in terms sufficiently broad to comprehend the Louisville Chancery Court.

This would be so, I have no doubt, if the language of the Code mentioned as continuing the former duties and rights of the chancellor and commissioner of the chancery court was such as to manifest a particular legislative intention to continue the former law in force, merely restricting its application to the Louisville Chancery Court, for that would constitute a virtual re-enactment of the old law as applicable to the chancery court, though in its general scope repealed or superseded by the repugnant provisions of the Code; for it is an established rule, with regard to conflicting or inconsistent enactments relating to or comprehending the same subject, that where a general intention is expressed, and also: a particular intention which to the extent of its application is incompatible with the general intention, the particular intention of the legislature is to be considered in tbe nature of an exception. (Sedgwick on Statutory and Constitutional Law, 60.)

But I do not find in either of the sections of the Code defining the duties of the chancellor, or those of the commissioner, any provision expressing or indicating an exception to the general authority conferred by section 467 for appointing commissioners in cases prosecuted for the settlement of estates. Although the chapter of the Code concerning the Louisville Chancery Court, which in section 775 expressly declares that the proceedings of that court shall conform to the Code except as modified by that chapter, does modify and exclude the general provisions of the Code in many respects, it contains no expression even implying a purpose of excluding section 467 as a rule of practice governing the reference of cases to commissioners for the settlement of estates.

The Code of Practice is by section 766 expressly made to apply to and regulate the proceedings of all courts of this commonwealth, though not expressly enumerated.” By treating its particular provisions respecting the Louisville Chancery Court as exceptions merely, and giving effect to its general provisions so far as they do not appear to be excluded by those or other exceptions, the supposed difficulty of harmonizing repugnant or conflicting provisions will be removed, and proper effect given to the entire Code; and, regarding this rule of construction as correct, I am constrained to conclude that the chancellor had the power, under section 467 of the Code, to appoint Marshall a commissioner in the case of Doern’s adm’r v. Doern’s heirs and creditors.

In the argument of this case much importance has been attached to an usage of the court, long and, I think, properly acquiesced in, of preferring the master to act as commissioner to others, whether the court was peremptorily required by law to appoint him or not; but the power of courts of equity to appoint special commissioners to discharge particular duties in a variety of cases has not been and I presume can not be controverted. However just and proper it may be to prefer one who has accepted the office of commissioner of a court, and who is often best qualified to execute its orders of reference, I deem it sufficient to say that I know of no law depriving the courts of all discretion in the selection and appointment of special commissioners; but, on the contrary, by the second section of the act approved March 5, 1867, to require master commissioners to take an oath and execute bond for the faithful performance of their duties,” it is expressly declared that “ the court may appoint a special commissioner in any case, who by virtue of his appointment shall act as receiver in said court.” (1 Session Acts, 1867, p. 64.) This provision, though constructively repealed by the act of March 17, 1870, so far as it may relate to the office of receiver of the Louisville Chancery Court, is not otherwise affected by that act; and if it applies to that court, it seems to me to be conclusive of the question under consideration, and it is certainly sufficiently comprehensive in its terms to embrace that court. But be this as it may, the provision of the statute is an affirmance by the legislature of a principle which in many cases must be essential to the jurisdiction of a court of equity.

I deem it scarcely necessary to refer to particular instances, in the various forms of equitable procedure, in which the courts are not only authorized but required to appoint one or more special commissioners to execute their orders; as to make assessments or valuations, audit accounts, allot dower, or partition lands. Indeed, the existence of such a power may be said to have been coeval with the establishment of courts of equity; and it is an attribute of their jurisdiction so important to the correct administration of justice, so often recognized by legislative enactment, and so long and uniformly acquiesced in, that its exercise ought not to be abridged or restricted except by imperative law.

As I conceive that this has not been done by the law now in force for the government of the action of the Louisville Chancery Court in suits for the settlement of the estates of deceased persons, I am of the opinion that the chancellor did not transcend his authority in appointing Marshall a commissioner in the case of Doern’s adm’r v. Doern’s heirs, &c., and that the rule against him should be discharged.  