Moore v. Fannin

104 S.W. 842, 7 Indian Terr. 580, 1907 Indian Terr. LEXIS 64

Opinion

Townsend, J.

(after stating the facts as above). This case comes before this court on the demurrer of defendant to plaintiff’s petition, and the only question at -issue is as to the authority of the clerk of the court, in vacation, to grant letters of curatorship. It is conceded by both sides that the clerk is authorized to grant letters of guardianship in vacation, unde section 3462 of Mansfield’s Digest (Ind. Ter.'Ann. St. 1899, § 2358), but it is contended by defendant in error that this authority does not extend to the granting of letters of' curatorship. Plaintiff in error contends that the general rule is that a curator-ship is a guardianship, limited in its nature, confined to the estate of the minor, and that the term guardianship is broad enough to and does cover the term curatorship, and that, therefore, the authority given by legislative act to the clerk to grant letters of guardianship in vacation gives also authority to grant letters of curatorship. Section 3462 is the only provision of the statute that grants the power of appointment to the clerk, and guardians alone are mentioned. 'The section is as follows: “The clerk of the court of probate, either in person or by deputy,, shall in vacation have power to grant letters of guardianship, subject to the confirmation or rejection of the court.” Section 3485 of Mansfield’s Digest (Inch Ter. Ann. St. 1899, § 2381) defines the duties and functions of guardians and curators, and is as follows: “The guardian of the' person, whether natural or legal, shall be entitled to the charge, custody and control of the person of his ward, and the care of his education, support and maintenance. The curator shall have the care and management of the estate of the minor, subject to the superintending control of the court; and the guardian of the person and estate of the minor shall have all the powers and perform all the duties both of a guardian of the person and curator.” ‘ From this section it seems that some distinction is made in the Arkansas statute between guardians and curators. In sections 3477 and 3478 appointments of curators are provided for by the court. The sections are as follows:

“Sec. 3477. When a minor shall be entitled to or possessed of any estate not derived from the parent who shall be the natural guardian at the time, and it shall be suggested to the court that such parent is incompetent to the care of such estate, or is mismanaging or wasting the same, the court may issue a notice to such person to appear before it at a stated time, and show cause why a curator shall not be appointed or chosen; and, if on due notice ho sufficient cause be shown, the court shall appoint a curator for the management of such estate for the minor, if under fourteen years of age, or, if over that age, admit the minor to choose one in the same manner and subject to the same restrictions as provided for the choice or appointment of guardians for minors over that age.

“See. 3478.- Whenever the court shall be satisfied that it will be for the advantage of minors to appoint a curator of the estate different from the guardian of the person, it shall be lawful to make such separate appointment for minors under fourteen years of age, and for minors over that age to make such separate choice, subject to the approval of the court; and all guardians or curators shall be allowed to prosecute and defend for the minors in all matters committed to the care of such guardians and curators respectively, without further evidence in the several courts of the state.”

In these sections it will be noticed, as above stated, that appointments of curators are provided for by the court, and no mention is made of any authority to make such appointments being vested elsewhere. Where authority to perform some specific act is given by legislative enactment to a court, the power cannot be delegated to some officer of the court, unless authorized by the act. In Broom’s Legal Maxims, 839, it is said: “Nor can an individual clothed with judicial functions delegate the discharge of these functions to another, unless as in the case of a county court judge he be expressly empowered to do so under specified circumstances; for the ordinary rule is that, although a ministerial officer maj’- appoint a deputj'-, a judicial officer cannot.” In Sutherland on Statutory Construction, § 325, it is said: “Sec. 325.. ‘Expressio unius est ex-clusio alterias.’ This maxim, like all rules of construction, is applicable under certain conditions to determine the intention of the lawmaker when it is not otherwise manifest. Under these conditions it leads to safe and satisfactory conclusions; but otherwise the expression of one or more things is not a negation or exclusion of other things. What is expressed is exclusive only when it is creative, or in derogation of some existing law, or of some provisions in the particular act. The maxim is applicable to a statutory provision which grants originally a power or right. In such cases the power or right originates with the statute, and exists only tq the extent plainly granted. The right while inchoate, and the power so far as not exercised, cease, if the statute be repealed, and if the statute provides the mode in which they shall be exercised that mode must be pursued and no other. This conclusion is almost self-evident; for, since the statute creates and regulates, there is no ground for claiming or proceeding except according to it. In other words, where a statute gives a new right and prescribes-a particular remedy, such remedy must be strictly pursued, and the party is confined to that remedy. ‘The rule is certain/ said Lord Mansfield, ‘that where a statute creates a new offense, by prohibiting and making unlawful anything which was-lawful before, and appoints a specific remedy against such new offense (not antecedently unlawful), by a particular sanction and particular method of proceeding, that particular method, must be pursued and no other.’ Where a statute authorizes-a public work, and points out a mode in which parties injured thereby may obtain compensation, that remedy is exclusive; and the scope of the remedy or points of compensation are-confined to the statutory limits. In Arkansas the whole subject of interest, so far as regards contracts for'the payment of money, express or implied, was regulated bjr statute, and it was held these provisions excluded its allowance in other cases than, those enumerated. * * *” And in section - 431:. “Sec. 431. ‘Casus omissus.’ It will be seen by the foregoing illustrations of liberal construction that, where language has-received an expansive construction, it Las been to effect the-intention of the lawmaker not to give the statute an effect beyond the intention or to supply the defects of the statute. It results from the judicial function of expounding the law as it is-that the courts cannot extend it to meet a case which has clearly and undoubtedly been omitted to be provided for. As the-judicial committee said in Crawford vs Spooner: ‘We cannot aid the Legislature’s defective phrasing of an act. We cannot add. and amend, and, by construction, make up deficiencies which are left there.’ In other words, the language of statutes, but more especially of modern acts, must neither be extended beyond its natural and proper meaning, in order to supply defects, nor strained to meet the justice of an individual case. If the language is plain, precise, and unambiguous, there is no' room for construction; and the particular intention so expressed is alone to be carried into effect. A statute of Connecticut, which validated deeds executed and acknowledged in any other state ‘in conformity with the laws of such state/ was held not to apply to a deed of land situated in that state, executed in New York and acknowledged before a Connecticut commissioner, defective by the laws of Connecticut, if executed there, for- having but one witness. In order to extend a statute by equitable construction beyond its letter, it must be collected from the act that the wrong sought to be redressed was one of the consider - .ations for passing it; otherwise, it is a casus omissus which a court of law cannot supply. Where an act denies to one class of suitors a remedy or defense which others enjoy, it will not be extended by equitable construction to cases not specified in it, unless the court is satisfied the case is within the mischief or occasion that was in the mind of the Legislature at the time of its passage. A statute in Maine provided that ‘hereafter when any woman possessed of property, real or personal, shall marry, such property shall continue to her notwithstanding her coverture, and she shall have, hold and possess the same as her separate property, exempt from any liability for the debts or contracts of her husband.’ It -was held that under this statute she could not make sales and purchases of-property. The court, by Shepley, J., said: ‘It ivas the intention of the Legislature, as the title of the act declares, to secure to married women their rights in proper't3r, and it should receive such a construction as will make that intention effectual, so far as it can be done consistently with the established rules of law.’ But courts of justice can give effect to legislative enactments onty to the extent to which they may be made operative by a fair and liberal construction of the language used. It is not their province to supply defective enactments by an attempt to carry out fully the purposes which may be supposed to have occasioned those enactments. This ivould be an assumption 'by the judicial of the duties of the legislative department.”

Considering in the light .of the above authorities the fact' that clerics of court “shall in vacation have power to grant letters of guardianship/' they would seem to be debarred from: the exercise of any power not specifically granted to them by statute, or delegated to them by the court, and hence are without', power to appoint a curator of the estate of a minor.

The judgment of the court below is affirmed.

Gill, C. J., and Lawrence, J., concur.