
    
      ROGERS vs. BEILLER.
    
    East. District.
    
      June 1815.
    The plaintiff brought suit as special administrator and the defendant denied the legal existence of such an officer.
    The office if special administrator is legal and is not abolished.
    
      'Morse, for the plaintiff.
    It is unnecessary to enqiure whether the office of special administrator existed under the French and Spanish ments, before the occupation of this country by the United States. Yet, if it existed, the Governor-General and Intendant had the power of fillip it, and this power passed undoubtedly to the person who made the ordinance. Admitting that the power did not exist, still it was the duty of the United States to provide for the preservation of the rights of absent heirs and in discharge of that duty, the ordinance was issued.
    By the act of congress, passed to enable the President of the United States to take possession of this country, it is provided that all the military, civil and judicial powers exercised by the officers of the Spanish government shall be exercised in such a manner, and shall be vested in such person. or persons, as the President of the United States shall direct. -
    'In pursuance of this act, the President of the-Ignited States issued a commission to the then ‘Governor of the Mississippi Territory, authoris-ing him to execute within the ceded territories, an the powers and authorities exercised by the Governor and Intendant thereof, gxcept that of laying new taxes and granting land.
    Vested with such powers, this officer, within a lew days after his arrival, passed ordinances for licencing retail dealers ; for incorporating the Bank of Louisiana, the ordinance under consideration and one for establishing a court for the trial of' causes. These acts of authority, no doubt, met the eye of the government of the U. States and were neither disapproved nor disowned. The office, therefore, had once a legal existence, and
    It never was abolished. It is true the Civil Code,. 172, authorises Parish Judges to appoint curators to vacant estates ; it is a fixed principle of law that no office can be abolished by implication, neither can a statute while it can stand with that which apparently repeals it. The Court will sustain two offices, if they can possibly stand together, 6 Bacon, 373. A repeal by implication shall not be allowed : acts seemingly repugnant shall, if possible stand.
    The office of the special administrator, and that of a curator to a vacant estate are distinct, and the powers of the one quite different from those of the other. The special administrator is restricted, he can only interfere with the estates of transient persons, who have resided less than two years Within the city of New-Orleans : his powers expire on the appointment of an administrator, and since the Civil Code on that of a curator : he has nothing to do with real property. His office has been recognised by the legislature, since the ' promulgation of the Civil Code, 1809, ch. 4, sec. 5, and suits have been brought since and sustained in the Superior Court of the late territory.
    
      Depeyster, for the defendant.
    The act of con-, gress of the 31st of October 1803, was the one under which the Governor was acting, when he issued the ordinance, under consideration. This instrument bears date of the 7th of September following, and although at that time the act of the 26th of March had passed, yet by the last clause of it the former act had been continued till the 1st of October following. So, it is from the first act that the authority is to be derived.
    Th i s act speaks of the military, civil and judicial powers exercised by the officers of the existing government. These powers were to be vested and exercised in such a manner as the President should direct. • His commission requires his grantee to exercise his powers according to law. Those, therefore, who support this ordinance ought to shew us the law of Spain, under which the officer who issued it was autho-rised to act. <
    Hxs were the power of a Governor and Inten-dant. The first officer in the Spanish colonies is military chief, he presides in the Cabildo, in the J 1 body in which was vested the power of making local regulations. He was vested with judicial authority both appellate and original; he had power of granting vacant land, though this was at time shared with the Intendant and it is believed lately was the province of the latter.
    It is true the history of the country, under the domination of Spain, affords glaring instances .of the exercise of supreme, nay despotic power, by the Governor-General., The abolition of the sovereign council which existed, under the French government by O’Reilly, the erection of the Ca-bildo, and the promulgation of part of the Spanish laws by the same officer, evince that he had other than executive powers. But, in the preamble o£ the instruments, by which these acts of authority were announced, reference is made to special powers granted by the King, from which it clearly appears that the ordinary functions of a Governor did not extend to them.
    . Lastly, if the office had ever a legal existence it was abrogated by the Civil Code which transmits all the powers of the special administrator to other hands. Civil Code, 172.
   Ma rtin, J.

delivered the opinión of the Court. Two questions present themselves for the dfccision of this Court.

1. D i d the office of s eel by the plaintiff ever pecial administrator, claim-1 " exist ?

2.'If it did, was it afterwards abrogated by any subsequent Taw ?

I. It is said it never existed for offices cannot be created in any other manner than by law, and the person, who issued the ordinance creating this, had no legislative power.

It is not easy for us to determine, what were the legitimate powers ot a Governor-General and Intendant of the Spanish province of Louisiana. It is clear, that some of the persons who filled that office exercised legislative power. The extent of the authority of that officer was certainly often eiw larged . by instructions from the crown and the limits of it which perhaps were never accurately defined in practice, cannot at the present time be with facility discerned. The President of the U. S. seems to have believed that the commission he granted to the then Governor of the Mississippi Territory, vesting him with the powers of Governor-General and Intendant of Louisiana, , clothed the grantee with some legislative authority, since he excepted the right of taxation from the grant. The grantee, issuing the ordinance creating the office, construed his commission as extending to die exercise of legislative authority iu this and some other instances, in which he was not censured ; the Superior Court of the late territory si-lentJy sanctioned his.conduct by sustaining suits and giving judgments in favor of the officer and the legislature,, as late as in 1809, imposed certain duties on him. Till the institution of the present suit, during the whole territorial government, no doubt appears to have been entertained of the constitutional and legal existence of the office. Many estates, some of great value, have been settled by the special administrator. It would be attended with monstrous inconveniencies, if by declaring that the office never legally excited the Court was to annul all the transactions of the various incumbents who have filled it.

When in the case of Stuart vs. Laird, 1 Cranch 309, a judgment was sought to be reversed, on the ground that the Judges of the Supreme Court of the U. States had no right to sit as circuit judges, not being appointed as such : or in other words that they ought to have distinct commissions for that purpose ; that Court thought it sufficient to observe that practice and acquiescence for a period of several years, commencing with the organisation of the judicial system, afforded an irresistible answer, and had indeed fixed the construction ; that it was a cotemporary interpretation of the most forcible nature, and this'practical exposition was too strong and too obstinate, to be shaken or controlled, they concluded that the question was now at rest and ought not now to be disturbed. Here practice has fixed the proper construction of the powers of the officer who issued the ordinance ; the judicial and legislative authorities of the late government have sanctioned the constru ction. Optima legum interpres consuetudo. If it was an erroneous one, it is the case to say communis errorJacitjus. It began with the organisation of the American government here ; the question is to be considered now as at rest, and ought not to be disturbed.

II. The power and duty of the officer were confined to the estates of persons dying in the city of New-Orleans, without having a residence of two years, leaving neither lineal relations, nor collateral ones of the first degree, nor husband or wife.

Some months after the creation of the office, courts of probates making a general provision for the administration of the property of intestates, were established by the legislative council in 1805. This was never held to interfere with the duties of the special administrator, whose office it was to secure the property till the appointment of an administrator.

\ In 1808, the Civil Code was published. This act purports to be a digest of the law, theretofore in force ; a decláratory act. The person, who, according to it is to attend to the estate of an intestate, in the absence of the next of kin is called a curator. The expression of the civil law corresponding to that of the English or American law; Administrator.

We conclude that neither the act of the legislative council, nor the Civil Code have repealed the ordinance under consideration.

A general provision does not repeal a particular one by implication. If a particular tiling be given or limited in the preceding part of a statute, this shat! not be altered or taken away by subsequent. general words of the same statute: 6 Bacon’s Abr. 231, verbo Statute. Stanton vs. Univ. of Oxford, 1 Jones, 26. In this case, the provision was not in the same statute, but it was in one in pari materia and all such are to be taken as ifthey were one. Douglas, 30.

Unless the ordinance cannot exist with the Civil Code, it must be holden unrepealed. Now, the duties it imposes are not more at war with the provisions of the Civil Code, than with the act of the legislative council. We conclude it is not repealed.

The judgment of the District Court must therefore be annulled and reversed, and the cause, must be remanded thither with directions to proceed to the trial.  