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ting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders,? or directing what particular steps shall be taken in the progress of a judicial inquiry.

1 Lewis v. Webb, 3 Me. 326; Dur- pass upon the validity of State grants ham v. Lewiston, 4 Me. 140; Atkin- and correct errors therein; this being son v. Dunlap, 50 Me. 111; Bates v. judicial. Hilliard v. Connelly, 7 Geo. Kimball, 2 Chip. 77; Staniford v. 172. Nor, where a corporate charter Barry, 1 Aik. 314; Merrill v. Sher- provides that it shall not be repealed burne, 1 N. H. 199; Opinion of is unless it shall be made to appear Judges in Matter of Dorr, 3 R. I. to the legislature that there has been 299; Taylor v. Place, 4 R. I. 324; a violation by the company of some of Dechastellux v. Fairchild, 15 Penn. its provisions," can there be a repeal St. 18; Young v. State Bank, 4 Ind. before a judicial inquiry into the 301; Beebe v. State, 6 Ind. 515; violation. Flint, &c. Plauk Road Co. Lanier r. Gallatas, 13 La. Ann. 175; v. Woodhull, 25 Mich. 99. A legisMayor, &c. v. Horn, 26 Md. 194; lative act cannot turn divorces nisi Weaver v. Lapsley, 43 Ala. 221; into absolute divorces, of its own Saunders r. Cabaniss, 43 Ala. 173; force. Sparhawk v. Sparhawk, 116 Moser v. White, 29 Mich. 59; Sydnor Mass. 315. But to take away by v. Palmer, 32 Wis. 409; People v. statute a statutory right of appeal is Frisbie, 26 Cal. 135; Lawson v. Jef- not an exercise of judicial authority. fries, 47 Miss. 686 ; s. c. 12 Am. Rep. Ex parte McCardle, 7 Wall. 506. 342. And see post, pp. * 391-* 393 and And it has been held that a statute notes. It is not competent by legis- allowing an appeal in a particular lation to authorize the court of final case was valid. Prout v. Berry, 2 resort to reopen and rehear cases pre- Gill, 147; State v. Northern Central viously decided. Dorsey v. Dorsey, R. R. Co., 18 Md. 193. A retro37 Md. 64; . c. 11 Am. Rep. 528. active statute, giving the right of The legislature may control remedies, appeal in cases in which it had pre&c., but, when the matter has pro- viously been lost by lapse of time, ceeded to judgment, it has passed was sustained in Page v. Mathews's beyond legislative control. Oliver Adm'r, 40 Ala. 517. But in Carleton v. McClure, 28 Ark. 555; Griffin's v. Goodwin's Ex'r, 41 Ala. 153, an Executor v. Cunningham, 20 Gratt. act the effect of which would have 31; Teel v. Yancey, 23 Gratt. 691; been to revive discontinued appeals Hooker v. llooker, 18 Miss. 599. was held void as an exercise of judi

2 In State v. Fleming, 7 Humph. cial authority. See cases cited in 152, a legislative resolve that - no next note. fine, forfeiture, or imprisonment, 3 Opinions of Judges on the Dorr should be imposed or recovered under Case, 3 R. I. 299. In the case of the act of 1837 (then in force], and Picquet, Appellant, 5 Pick. 64, the that all causes pending in any of the judge of probate had ordered letters courts for such offence should be of administration to issue to an apdismissed," was held void as an plicant therefor, on his giving bond invasion of judicial authority. The in the penal sum of $50,000, with legislature cannot declare a forfeiture sureties within the Commonwealth, of a right to act as curators of a for the faithful performance of his college. State v. Adams, 44 Mo. duties. He was unable to give the 570). Nor can it authorize the gov- bond, and applied to the legislature ernor or any other State officer to for relief. Thereupon a resolve was

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And as a court must act as an organized body of judges, (* 96] and, where differences of opinion arise, they can only decide by majorities, it has been held that it would not be in the power of the legislature to provide that, in certain contingencies, the opinion of the minority of a court, vested with power by the constitution, should prevail, so that the decision of the court in such cases should be rendered against the judgment of its members.

Nor is it in the power of the legislature to bind individuals by a recital of facts in a statute, to be used as evidence against the parties interested. A recital of facts in the preamble of a statute


passed “empowering" the judge of the legislature cannot confer the auprobate to grant the letters of ad- thority in a particular case. Simministration, provided the petitioner monds v. Simmonds, 103 Mass. 572; should give bond with his brother, S. c. 4 Am. Rep. 576. And see post, a resident of Paris, France, as surety, pp. * 110, note, *392 and note. and “that such bond should be in 1 In Clapp v. Ely, 3 Dutch. 622, lieu of any and all bond or bonds by it was held that a statute which proany law or statute in this Common- vided that no judgment of the Suwealth now in force required." &c. preme Court should be reversed by The judge of probate refused to the Court of Errors and Appeals, grant the letters on the terms speci- unless a majority of those members fied in this resolve, and the Supreme of the court who were competent to Court, while holding that it was not sit on the hearing and decision should compulsory upon him, also declared concur in the reversal, was unconstitheir opinion that, if it were so, it tutional. Its effect would be, if the would be inoperative and void. In court were not full, to make the Bradford v. Brooks, 2 Aik. 281, it opinion of the minority in favor of was decided that the legislature had affirmance control that of the majority no power to revive a commission for in favor of reversal, unless the latter proving claims against an estate after were a majority of the whole court. it had once expired. See also Bagg's Such a provision in the constitution Appeal, 43 Penn. St. 512; Trustees v. might be proper and unexceptionable; Bailey, 10 Fla. 233. In Hill v. Sun- but if the constitution has created a derland, 3 Vt. 507, and Burch v. court of appeals, without any reNewberry, 10 N. Y. 374, it was held striction of this character, the ruling that the legislature had no power to of this case is that the legislature grant to parties a right to appeal cannot impose it. The court was after it was gone under the general nearly equally divided, standing law. In Burt v. Williams, 24 Ark.

seven to six. A statute authoriz91, it was held that the granting of ing an unofficial person to sit in the continuances of pending cases was place of a judge who is disqualified, the exercise of judicial authority, and

was held void in Van Slyke v. Insura legislative act assuming to do this ance Co., 39 Wis. 390; s. c. 20 Am. was void. And where, by the gen- Rep. 50. That judicial power caneral law, the courts have no authority not be delegated, see Cohen v. Hoff, to grant a divorce for a given cause,

3 Brev. 500.

may perhaps be evidence, where it relates to matters of a public nature, as that riots or disorders exist in a certain part of the country ; 1 but where the facts concern the rights of individuals, the legislature cannot adjudicate upon them. As private statutes are generally obtained on the application of some party interested, and are put in form to suit his wishes, perhaps their exclusion from being made evidence against any other party would result from other general principles; but it is clear that the recital could have no force, except as a judicial finding of facts; and that such

finding is not within the legislative province.? [* 97] * We come now to a class of cases in regard to which

there has been serious contrariety of opinion ; springing from the fact, perhaps, that the purpose sought to be accomplishd by the statutes is generally effected by judicial proceedings, so that if the statutes are not a direct invasion of judicial authority, they at least cover ground which the courts usually occupy under general laws conferring the jurisdiction upon them. We refer to

Statutes empowering Guardians and other Trustees to sell Lands.

Whenever it becomes necessary or proper to sell the estate of a decedent for the payment of debts, or of a lunatic or other incompetent person for the same purpose, or for future support, or of a minor to provide the means for his education and nurture, or for the most profitable investment of the proceeds, or of tenants in common to effectuate a partition between them, it will probably be found in every State that some court is vested with jurisdiction to make the necessary order, if the facts after a hearing of the parties in interest seem to render it important. The case is eminently one for judicial investigation. There are facts to be inquired into, in regard to which it is always possible that disputes may arise; the party in interest is often incompetent to act on his own behalf, and his interest is carefully to be inquired into and guarded ; and as the proceeding will usually be ex parte, there is more than the ordinary opportunity for fraud upon the party interested, as well as upon the authority which grants permission. It is highly and peculiarly proper, therefore, that by general laws judicial inquiry should be provided for these cases, and that such laws should require notice to all proper parties, and afford an opportunity for the presentation of any facts which might bear upon the propriety of granting the applications.

i Rex v. Sutton, 4 M. & S. 532. 80; Lothrop v. Steadman, 42 Conn.

2 Elmendorf v. Carmichael, 3 Litt. 583, 592. 478 ; Parmelee v. Thompson, 7 Hill

But it will sometimes be found that the general laws provided for these cases are not applicable to some which arise ; or, if applicable, that they do not accomplish fully all that in some cases seems desirable; and in these cases, and perhaps also in some others without similar excuse, it has not been unusual for legislative authority to intervene, and by special statute to grant the permission which, under the general law, would be granted by the courts. The * power to pass such statutes [* 98] has often been disputed, and it may be well to see upon what basis of authority as well as of reason it rests.

If in fact the inquiry which precedes the grant of authority is in its nature judicial, it would seem clear that such statutes must be ineffectual and void. But if judicial inquiry is not essential, and the legislature may confer the power of sale in such a case upon an er parte presentation of evidence, or upon the representations of the parties without any proof whatever, then we must consider the general laws to be passed, not because the cases fall necessarily within the province of judicial action, but because the courts can more conveniently consider, and more properly, safely, and inexpensively pass upon such cases, than the legislative body, to which the power primarily belongs.?

The rule upon this subject, which appears to be deducible from the authorities, is this : If the party standing in position of trustee applies for permission to convert by a sale the real property into personal, in order to effectuate the purposes of the trust, and to accomplish objects in the interest of the cestui que trust not otherwise attainable, there is nothing in the granting of

There are constitutional provi- persons under legal disability. Persions in Kentucky, Virginia, Missouri, haps the general provision in some Oregon, Nevada, Indiana, Maryland, other constitutions, forbidding special New Jersey, Arkansas, Florida, Illi- laws in cases where a general law nois, Wisconsin, Texas, West Vir- could be made applicable, might also ginia, Michigan, and Colorado, be held to exclude such special auforbidding special laws licensing the thorization. sale of the lands of minors and other

permission which is in its nature judicial. To grant permission is merely to enlarge the sphere of the judiciary authority, the better to accomplish the purpose for which the trusteeship exists; and while it would be entirely proper to make the questions which might arise assume a judicial form, by referring them to some proper court for consideration and decision, there is no usurpation of power if the legislature shall, by direct action, grant the permission.

In the case of Rice v. Parkman,' certain minors having become entitled to real estate by descent from their mother, the legislature passed a special statute empowering their father as guardian for them, and, after giving bond to the judge of probate, to sell and convey the lands, and put the proceeds at interest on good security for the benefit of the minor owners. A sale was made accordingly; but the children, after coming of age, brought suit against the party claiming under the sale, insisting that the special statute was void. There was in force at the time this special statute was passed a general statute, under which license might have been granted by the courts; but it was held that

this general law did not deprive the legislature of that (* 99] full * and complete control over such cases which it would

have possessed had no such statute existed. the court, “ 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 legislature 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 of

1 16 Mass. 326.

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