Christiancy J.:
Several questions are raised by the return to the certiorari in this cause, of which, however, we shall notice but two.
First, Conceding that the notary had all the power which could be exercised by a circuit court commissioner, the question arises, Whether the case presented by the application (petition) and the evidence, was such as to come within the jurisdiction of the commissioner.
The statute authorizing this special proceeding (Comp. L. p. 1275) provides that “It shall be lawful for any defendant, whose property may be attached by virtue of such writ, to apply to the judge of the circuit court, or the circuit court commissioner of the county, for a dissolution of the attachment, which application shall be in writing, and shall contain the reasons for such application.” By section two, the judge or commissioner, on presentation of such application, is required to issue a citation to the plaintiff to show cause “why the said attachment should not be dissolved and the property restored to the defendant in attachment.” By sec. tion three, the judge or commissioner is to hear the proofs and allegations of the parties, and if he shall be satisfied that such plaintiff has not a good legal cause for suing out such writ, “he may order such attachment to be dissolved, and the property attached to be restored to the defendant”; and he may require the defendant, as-a condition of the dissolution, to enter his appearance in the cause. Section four provides that he may issue subpoenas, and, if necessary, attachments, to compel the attendance of witnesses to testify in such cases [416]*416and may order the costs of the proceedings by citation to be paid by the party against whom the decisions shall be made) and may issue execution therefor.
The statute conferring the like powers upon notaries, in certain cases, will be noticed hereafter.
The proceedings authorized by the statute above cited, is a special proceeding not according to the course of the common law; and, to maintain the jurisdiction of the officer, such jurisdiction must affirmatively appear upon the record.— Wight vs. Warner, 1 Doug. Mich. 384; Clark vs. Holmes, Ibid. 390.
It may well be doubted whether the petition presented in this case for a dissolution of the attachment, discloses a case coming within the provisions of the Act, as it does not state that the property of the defendants had been attached, and, consequently, if its truth be admitted, does not show a proper case for an order dissolving the attachment, and “restoring the property to the defendants.” This, we are inclined to think, should have appeared on the face of the petition, to confer jurisdiction. But if it be contended that this want of jurisdiction might be cured by the evidence, though not stated in the petition (which we think is not the the law), yet, in this case, a reference to the evidence only tends to render the want of jurisdiction more apparent and conclusive, proving clearly that the defendants in the attachment had no pretence of claim to have the property restored to them, as it shows the property had been assigned to another for the benefit of creditors. This assignment, whether void or not as against creditors, was, so far as the evidence tends to prove, valid as against the defendants. The plaintiffs in the attachment, being creditors, might dispute its validity, but the defendants could not.
The case, therefore, as presented, not only omits to show any right of the defendants in the property attached, but Shows affirmatively that no such right existed, and furnishes a very satisfactory reason why the defendants did not set [417]*417forth such right in their sworn petition. We are inclined, therefore, to the opinion that the case was not within the jurisdiction of the notary, even if he possessed all the power of a commissioner in such case.
But, Second, admitting that the petition presented a proper case (which we think it did not) for the jurisdiction of a circuit court commissioner, could the notary exercise such jurisdiction, the commissioner being disqualified to act?
The Act of February 14th, 1858 (Comp. L. pp. 1112 and 1113), in express terms, gives to a notary public all the powers-, in such cases, which are conferred upon the circuit court commissioner by the Act first above cited, in all cases Avhere such commissioner is a party, attorney, solicitor, or counsel, or otherwise interested. And, in this case, the only circuit court commissioner was counsel in the cause.
This, presents the naked question, Whether the Legislature possessed the constitutional power to confer such jurisdiction upon the notary?
•The proceeding, authorized by the statute first cited, for dissolving attachments, is as clearly a judicial proceeding as the trial of a cause in any court of theYState; and the power “ to hear and determine ” such application -under the statute, is as clearly a judicial power as that exercised by a justice of the peace or a. judge upon the bench. It is not like a mere reference to takeJprooP or compute amounts to be reported to a court of record for their judicial action, but it is “ (o hear and determine ” questions both of laAV and fact.
Sec. 1, Art. YI. of the Constitution declares: “The judicial power is vested in one Supreme Court, in Circuit Courts, in Probate Courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the Legislature, in cities.” This, beyond all controversy vests the whole judicial power of the State in the courts and officers named in this section, unless there be some further provision in the same Constitution, conferring upon some other [418]*418court or officer a part of such judicial power, or authorizing the Legislature to confer it; and in the latter case, it can only be possessed or conferred by such further provision expressly, or by necessary implication, which would have the effect to take the case out of the general provision above quoted. This must be so upon principle, or the Constitution itself must bo subject to legislative repeal. It is also well supported by authority. — See 2 Story on Const. §§1590 to 1592; State vs. City of Rockford, 14 Ill. 420; Gibson vs. Emerson., 2 Eng. 173.
The Constitution of New York contains no such provision vesting the judicial power in specified courts or officers, though it provides that certain courts shall be established, and certain judicial officers elected. And in the case of Sill vs. Village of Corning, 15 N. Y. 300, the majority of the Court of Appeals assign the absence of such provision as the ground for their opinion that the Legislature had the power to provide for a police justice in the village of Corning,
i * Our Constitution, it is true, has authorized the Legislature to confer certain judicial powers upon certain courts and certain officers not named in the general provision of section one above cited. Thus, the Legislature are authorized “to provide for the election of one or more persons in each organized county, who may bo vested with judicial power not exceeding those of a judge of the circuit court at chambers” (Art. VI. § 16); and by section 23 of the same article, the Legislature is authorized to establish courts of conciliation. These are express exceptions in the Constitution itself io the general provision of the first section of the article.
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Christiancy J.:
Several questions are raised by the return to the certiorari in this cause, of which, however, we shall notice but two.
First, Conceding that the notary had all the power which could be exercised by a circuit court commissioner, the question arises, Whether the case presented by the application (petition) and the evidence, was such as to come within the jurisdiction of the commissioner.
The statute authorizing this special proceeding (Comp. L. p. 1275) provides that “It shall be lawful for any defendant, whose property may be attached by virtue of such writ, to apply to the judge of the circuit court, or the circuit court commissioner of the county, for a dissolution of the attachment, which application shall be in writing, and shall contain the reasons for such application.” By section two, the judge or commissioner, on presentation of such application, is required to issue a citation to the plaintiff to show cause “why the said attachment should not be dissolved and the property restored to the defendant in attachment.” By sec. tion three, the judge or commissioner is to hear the proofs and allegations of the parties, and if he shall be satisfied that such plaintiff has not a good legal cause for suing out such writ, “he may order such attachment to be dissolved, and the property attached to be restored to the defendant”; and he may require the defendant, as-a condition of the dissolution, to enter his appearance in the cause. Section four provides that he may issue subpoenas, and, if necessary, attachments, to compel the attendance of witnesses to testify in such cases [416]*416and may order the costs of the proceedings by citation to be paid by the party against whom the decisions shall be made) and may issue execution therefor.
The statute conferring the like powers upon notaries, in certain cases, will be noticed hereafter.
The proceedings authorized by the statute above cited, is a special proceeding not according to the course of the common law; and, to maintain the jurisdiction of the officer, such jurisdiction must affirmatively appear upon the record.— Wight vs. Warner, 1 Doug. Mich. 384; Clark vs. Holmes, Ibid. 390.
It may well be doubted whether the petition presented in this case for a dissolution of the attachment, discloses a case coming within the provisions of the Act, as it does not state that the property of the defendants had been attached, and, consequently, if its truth be admitted, does not show a proper case for an order dissolving the attachment, and “restoring the property to the defendants.” This, we are inclined to think, should have appeared on the face of the petition, to confer jurisdiction. But if it be contended that this want of jurisdiction might be cured by the evidence, though not stated in the petition (which we think is not the the law), yet, in this case, a reference to the evidence only tends to render the want of jurisdiction more apparent and conclusive, proving clearly that the defendants in the attachment had no pretence of claim to have the property restored to them, as it shows the property had been assigned to another for the benefit of creditors. This assignment, whether void or not as against creditors, was, so far as the evidence tends to prove, valid as against the defendants. The plaintiffs in the attachment, being creditors, might dispute its validity, but the defendants could not.
The case, therefore, as presented, not only omits to show any right of the defendants in the property attached, but Shows affirmatively that no such right existed, and furnishes a very satisfactory reason why the defendants did not set [417]*417forth such right in their sworn petition. We are inclined, therefore, to the opinion that the case was not within the jurisdiction of the notary, even if he possessed all the power of a commissioner in such case.
But, Second, admitting that the petition presented a proper case (which we think it did not) for the jurisdiction of a circuit court commissioner, could the notary exercise such jurisdiction, the commissioner being disqualified to act?
The Act of February 14th, 1858 (Comp. L. pp. 1112 and 1113), in express terms, gives to a notary public all the powers-, in such cases, which are conferred upon the circuit court commissioner by the Act first above cited, in all cases Avhere such commissioner is a party, attorney, solicitor, or counsel, or otherwise interested. And, in this case, the only circuit court commissioner was counsel in the cause.
This, presents the naked question, Whether the Legislature possessed the constitutional power to confer such jurisdiction upon the notary?
•The proceeding, authorized by the statute first cited, for dissolving attachments, is as clearly a judicial proceeding as the trial of a cause in any court of theYState; and the power “ to hear and determine ” such application -under the statute, is as clearly a judicial power as that exercised by a justice of the peace or a. judge upon the bench. It is not like a mere reference to takeJprooP or compute amounts to be reported to a court of record for their judicial action, but it is “ (o hear and determine ” questions both of laAV and fact.
Sec. 1, Art. YI. of the Constitution declares: “The judicial power is vested in one Supreme Court, in Circuit Courts, in Probate Courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the Legislature, in cities.” This, beyond all controversy vests the whole judicial power of the State in the courts and officers named in this section, unless there be some further provision in the same Constitution, conferring upon some other [418]*418court or officer a part of such judicial power, or authorizing the Legislature to confer it; and in the latter case, it can only be possessed or conferred by such further provision expressly, or by necessary implication, which would have the effect to take the case out of the general provision above quoted. This must be so upon principle, or the Constitution itself must bo subject to legislative repeal. It is also well supported by authority. — See 2 Story on Const. §§1590 to 1592; State vs. City of Rockford, 14 Ill. 420; Gibson vs. Emerson., 2 Eng. 173.
The Constitution of New York contains no such provision vesting the judicial power in specified courts or officers, though it provides that certain courts shall be established, and certain judicial officers elected. And in the case of Sill vs. Village of Corning, 15 N. Y. 300, the majority of the Court of Appeals assign the absence of such provision as the ground for their opinion that the Legislature had the power to provide for a police justice in the village of Corning,
i * Our Constitution, it is true, has authorized the Legislature to confer certain judicial powers upon certain courts and certain officers not named in the general provision of section one above cited. Thus, the Legislature are authorized “to provide for the election of one or more persons in each organized county, who may bo vested with judicial power not exceeding those of a judge of the circuit court at chambers” (Art. VI. § 16); and by section 23 of the same article, the Legislature is authorized to establish courts of conciliation. These are express exceptions in the Constitution itself io the general provision of the first section of the article. And, but for these exceptions, no such judicial power could be exercised by, or conferred upon, such commissioners or eouz'ts of conciliation. If any other exceptions had beezi intezzded, they would have been expressed. There is zzo provision of the Constitution authorizing a notary public to exoz'cise any judicial power’, nor the Legislature to. confer such power.
Again: The Constitution has prescribed the mode of se[419]*419-Iecting all judicial officers for which it has provided, and the manner in which their offices shall be conferred. They are to be elected by the people, not appointed by the Governor. Notaries are appointed, and not elected; they owe their existence -to the statute, and not to the Constitution, and their number is not limited by the Constitution.
The case of the State vs. Judge of the 6th District, 9 La. An. 62, is an authority directly in point, that where the, Constitution has provided for the election of judicial officers’ any other mode of conferring the office is void. And, upon principle, we can see no escape from a like conclusion in the present ease.
Adhering, therefore, fully to the principles and rules of construction upon questions of constitutional power laid down in .the case of Sears vs. Cottrell, decided at the present •term, we are compelled to treat the Act of February 11th, 1853, cónferring upon notaries the jurisdiction in question (under the statute for the dissolution of attachments above quoted) as a plain and manifest -violation of the first section of Article IY. of the Constitution. But this opinion is not intended to apply to any merely ministerial powers or duties of such notaries, upon matters which may be referred to them by courts of record, and which are to be reported to such courts for judicial action.
The decision of the notary, and all his proceedings in this case, must therefore be set aside as void.
Martin Ch. J. and Campbell J. concurred.
Manning J.:
I think the proceedings before the notary, dissolving the attachment, are void for want of jurisdiction.
It does not appear in the petition any property of defendants was taken on the attachment. It might, perhaps, be -inferred from the prayer of the petitioner; but that is not -enough. It being a jurisdictional fact, without which the [420]*420notary could not entertain the proceeding, it should be posi-. tively stated, and not be left to inference. As the decision of this point is a final disposition of the case, I give no. opinion on the constitutional question. I am opposed' to. deciding such questions, unless necessary to dispose of the cause, and then only after much reflection and consideration*
Proceedings set aside as void.