
    Thomas K. Rice and Others versus Samuel Parkman.
    The legislature have power to license the sale of the real estates of minors, Sz.c., notwithstanding they have delegated the same power to the judicial courts.
    This was a writ of entry, in which the demandants allege that Asaph Rice, their father, and Thankful Rice, their mother, on the 15th of September, 1790, were seised in fee of the demanded premises in right of said Thankful, that she, the said Thankful, died on that day, leaving, her said husband tenant by the courtesy; and the demandants became seised in fee of the remainder expectant on the death of their father; who died on the — day of-1815—“ and so the premises, on the determination of his freehold by his death, of right vested in, and came to the demandants, to hold the same in fee; and the demandants ought now to be in possession of the premises accordingly. Yet the said Parkman hath illegally entered into the premises, and unjustly holds the demandants out.”
    The tenant pleads in bar, that after the death of the said Thankful, the said Asaph, on the 27th of February, 1792, by a certain resolve of the General Court of the commonwealth, in due form of law passed by the two houses and approved by the governor, was authorized to sell and convey the demanded premises for the most money that could be obtained therefor, and to put the proceeds thereof on interest with good security, for the use of the children of his said late wife; he first giving bond, &c.; *that on the 15th day of June, 1792, before the said [ *327 ] sale, the said Asaph gave bond, with sufficient sureties, to the judge of probate, &c., which bond is lost by time and accident; that afterwards, on the same 15th of June, by virtue of the said resolve, he bargained and sold the premises to one E. Homer, for 300 dollars, that being the most that could be obtained ; which sum the said Homer paid to the said Asaph, who thereupon by his deed, &c., conveyed the same to said Homer; that Homer entered and was seised in fee, and that the present tenant now has his estate.
    The demandants reply, protesting that there was no such resolve or sale, and traversing the giving of the bond. Issue was joined upon the traverse, and a verdict returned, that the bond was given according to the directions of the resolve.
    The demandants objected at the trial, that no authority to sell the estate could be legally derived from the said resolve; but that the same was wholly void, as respected them ; especially as it did not appear that any notice was given before the license was granted. This objection was overruled by the chief justice, before whom the trial was had, November term, 1818. A new trial was to be granted, if, in the opinion of the Court, the said resolve did not give authority to sell as aforesaid.
    
      Ward, for the demandants.
    It is well known that the legislature of what is now the commonwealth, .before the formation of our constitution, were in the habit of passing resolutions of this kind, as particular cases arose, which appeared to them suitable or convenient for their interference. It was to prevent such irregular procedures, that the framers of the constitution provided, by the tenth article of the declaration of rights, that “ each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws.” From the time that this became the fundamental law of the land, the power of [ * 328 ] the legislature * thus to pass upon the titles of citizens to their estates was at an end. This branch of the government was not, thereafter, either to interpret the laws, or to execute them.
    But if this power was not absolutely taken from the legislature, yet when, by a permanent law, they had referred the whole exercise of it to the judicial courts, as was done by the statute of 1783, c. 32, they ought not, by particular resolves, occasionally to resume it. If they did so resume it, they ought, in the exercise of it, to adhere at least to the rules which they had prescribed to those other tribunals, which they had especially empowered for the purpose. The statute ^referred to requires certain prerequisites in the judicial courts, as necessary to licensing a sale in any case, which were wholly disregarded by the legislature in this case.
    Further, this was not a case for licensing a sale, according to the rules established by the law. The only ground exhibited in the petition, why the sale should be authorized, is, that the buildings were out of repair, and that the expense of repairing them would call for more money than the rents produced. But this had no tendency to prove it for the interest of the minors, that the estate should be sold. The petitioner was tenant for life, and was bound to keep the premises in repair, or he would forfeit his estate. The whole inconvenience was therefore personal to him. This Court could not have granted a license upon such a representation.
    No notice appears to have been given of the pendency of the petition in this case, nor was any guardian appointed, who should protect the interest of the minor children ; both which are matters of common right, and are also prescribed by the standing law on the subject. It may be said that notice shall be presumed after so long a time; and cases may be referred to in support of the position. But those cases stand on different grounds. In them the business was transacted in courts, whose practice is always presumed to be conformed to law; whereas here no rules existed, * to which a conformity might be presumed. In those [ * 329 ] (Mises, too, the heirs, whether adults or minors, were in possession, and there was a great probability that they were conusant of what was passing respecting their estate. In this case the petitioner himself was seised, and in possession of the estate. The title of the demandants accrued only on the death of their father in L815 ; no loches are therefore imputable to them.
    
      Gallison, for the tenant.
   Parker, C. J.,

delivered the opinion of the Court. If the power, by which the resolve, authorizing the sale in this case, was passed, were of a judicial nature, it would be very clear, that it could not have been exercised by the legislature, without violating an express provision of the constitution. But it does not seem to us to be of this description of power; for it was not a case of controversy between party and party; nor is there any decree or judgment, affecting the title to property. The only object of the authority granted by the legislature was, to transmute real into personal estate, for purposes beneficial to all who were interested therein.

This is a power frequently exercised by the legislature of this state, since the adoption of the constitution ; and by the legislatures of the province, and of the colony, while under the sovereignty of Great Britain; analogous to the power exercised by the British parliament, on similar subjects, time out of mind. Indeed it seems absolutely necessary for the interest of those, who, by the general rules of law, are incapacitated from disposing of their property, that a power'should exist somewhere, to convert lands into money. For otherwise many minors might suffer, although having property; it not being in a condition to yield an income. This power must rest in the legislature in this commonwealth; that body being alone competent to act as the general guardian and protector of those who are disabled to act for themselves.

* It was undoubtedly wise to delegate t*his authority [ * 330 j to other bodies, whose sessions are regular and constant, and whoso structure may enable them more easily to understand the merits of the particular applications brought before them. But it does not follow that, because the power lias been delegated by the legislature’to courts of law, it .is judicial in its character. For aught we see, the same authority might have been given to the selectmen of each town, or to the clerks or registers of the counties; it being a mere ministerial act, certainly requiring discretion, and sometimes knowledge of law, for its due exercise; but still partaking in no degree of the characteristics of judicial power.

It is doubtless included in the general authority, granted by the people to the legislature in the constitution. For full power ind authority is given, from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions (so as the same be not repugnant or contrary to the constitution), as they shall judge to be for the good and welfare of the commonwealth, and of the subjects thereof.

No one imagines that, under this general authprity, the legislature could deprive a citizen of his estate, or impair any valuable contract in which he might be interested. But there seems to be no reason to doubt that, upon his application, or the application of tiróse who properly represent him, if disabled from acting himself, a beneficial change of his estate, or a sale of it for purposes necessary and convenient for the lawful owner, is a just and proper subject for the exercise of that authority. It is, in fact, protecting him in his property, which the legislature is bound to do; and enabling him to derive subsistence, comfort, and education from property, which might otherwise be wholly useless during that period of life, when it might be most beneficially employed.

[*331 ] *If this be not true, then the general laws, under which so many estates of minors, persons non compos mentis, and others, have been sold and converted into money, are unauthorized by the constitution, and void. For the courts derive their authority from the legislature, and it not being of a judicial nature, if the legislature had it not, they could not communicate it to any other body. Thus, if there were no power to relieve those from actual distress, who had unproductive property, and were disabled from conveying it themselves, it would seem that one of the most essential objects of government, that of providing for the welfare of he citizens, would be lost.

But the argument, which has most weight on the part of the demandants, is that the. legislature has exercised its power over this subject, in the only constitutional way, by establishing a general provision; and that, having done this, their authority has ceased, they having no right to interfere in particular cases. And if the question were one of expediency only, we should perhaps be convinced by the argument, that it would be better for all such applications to be made to the courts empowered to sustain them.

But as a question of right, we think the argument fails. The constituent, when he has delegated an authority without an interest, may do the act himself, which he has authorized another to do; and ¿specially when that constituent is the legislature, and is not prohibited by the constitution from exercising the authority. Indeed the whole authority might be revoked, and the legislature resume the burden of this business to itself, if in its wisdom it should determine that the common welfare required it.

It is not legislation, which must be by general acts and rules, but the use of a parental or tutorial power, for purposes of kindness, without interfering with, or prejudice to the rights of any, but those who apply for specific relief. * The title of [ * 332 ] stringers is not in any degree affected by such an interposition.

In the case before us, the object sought for could not have been obtained in the ordinary way of a license from a court of law ; for by that nothing could have been sold but the reversion belonging to the heirs ; and the proceeds of that alone would have been put at interest; whereas, by a sale of the whole, as was authorized by the legislature, there is no doubt a better price was obtained, and the proceeds finally coming to the heirs were greater than they would otherwise have been. It is true, that the same purpose might have been effected substantially by a license to sell the reversion, and a sale of the estate for life without license by the tenant of the freehold. But still the proceeds would not have been vested so beneficially, as they were under the actual sale.

We do not consider notice to have been essential, if the fact be that none was given. The father acted as guardian, and he had no interest adverse to that of his children. Notice is not required by law to be given, upon applications for the sale of the estates of minors .

Judgment for the tenant on the verdict. 
      
       [In Holden vs. James (11 Mass. 397), the Court decided that the legislature could not suspend the operation of a general law to give a remedy in favor of an individual, although the constitution provides that the power oí suspending the laws, or the execution of the laws, may be exercised by the legislature, or by authority derived from the legislature, to be exercised in such particular cases only as the legislature shall expressly provide for; and although the practice, ever since the adoption of the constitution, had been to enact remedial laws in like cases. But the soundness of this decision has been questioned.—Ed.]
     