The only plausible objection, to our mind, to the constitutionality of the law is that the passage of the act was not legitimate legislative power; that before such a sale should be ordered there are facts to be inquired into which properly belong to the judiciary. This questionis discussed at length by Judge Cooley in his late work on Constitutional Limitations upon Legislative Power (pp. 97-106), and all the cases are there cited, and the leading ones largely quoted from. The decisions are all one way, unless we except the opinion of the Judges in 4 N. H.
The only other cases referred to by counsel for the plaintiff which seem to us to have any application to the point in discussion, are Powers v. Bergen (6 N.Y. 358) and Jones v. Perry (10 Yerg. 59).
In Powers v. Bergen, cases where the Legislature " acting as the guardian and protector of those who are disabled to act for themselves, by reason of infancy, lunacy, or other like causes," have " passed general or private laws, under which an effectual disposition or sale of their lands and other property may be made in order to promote their interests," are expressly excepted and distinguished from the case in discussion; and the court quotes with approval the decisions sustaining such laws. (See Leggett v. Hunter , 19 N.Y. 461.)
In Jones v. Perry, the court goes out of its way to controvert the positions taken in Rice v. Parkman. But the only thing decided is, that anact of the Legislature directing the real estate of certain minors therein mentioned to be sold by their guardians, and the proceeds to be applied to the payment of their ancestors' debts, is judicial in its character.
" It was enacted upon the avowed ground that the estate of John Jones, deceased, was indebted. What does it do then but adjudge the existence of the debts, and decree that the lands be sold for their payment?"
We think there is a material distinction between such an act and one like the present, where the character only of the property is changed for the benefit of the minor. (See Watkins v. Holman's Lessee, and Doe v. Douglass, 8 Blackf. 10).
We think we cannot do better than refer the court to the discussion of the whole question by Judge Cooley, and to the cases there cited. We would desire, however, to call special attention to the following: Rice v. Parkman , 16 Mass. 326; Davison v. Johonnot, 7 Met. 388; Cochran v. Van Surley, 20 Wend. 373; Stewart v. Griffith , 33 Mo. 13, and cases cited; Boon v. Bowers , 30 Miss. 246; McComb v. Gilkey , 29 Miss. 146; Williamson v. Williamson , 3 S. & M. 715; Doe v. Douglass, 8Blackf. 10; Florentine v. Barton, 2 Wall. 210; Smith v. Judge of Twelfth District , 17 Cal. 553, 563; Watkins v. Holman's Lessee, 16 Pet. 62; Stockton and Visalia R. R. Co. v. City of Stockton, April Term, 1871.
JUDGES: McKinstry, J. Mr. Chief Justice Wallace did not express an opinion.
OPINION
McKINSTRY, Judge
While entertaining grave doubt in respect to the point, we shall assume, for the purposes of this decision, that the Legislature has power to authorize or direct the sale, by a stranger, of the real estate of a minor; that the matter of the appointment of guardians of infants, and the disposition of the estates of such, is not exclusively of judicial cognizance, to be referred to a court of appropriate jurisdiction, but is one which may, in any instance, be directly regulated by the legislative department of the government. It is not necessary to determine the constitutional question suggested, because we are convinced that the act, on the construction of which the main point in this case turns, is not an attempt to confer the power of sale on Martha Ann Paty Dayley, as an individual, but to confer upon her the power of making private sales in her capacity as guardian of the estate of the infant, Francis William Paty.
Independently of any question of constitutionality, we would not be justified in saying that it was the intention of the Legislature to authorize an adult who had given, and was required to give no bond or security, to sell the real estate of an infant, and to appropriate the proceeds, freed of the supervision of any court or officer, unless the language conferring that dangerous power should be clear and explicit. We cannot assume such intention upon any ambiguous phraseology. The person named in the act was never appointed guardian in this State; never gave bond to secure the proper application of any fund that might come into her hands; and (if we adopt the construction of the respondent) while the Probate Judge was given power to disapprove of a sale--that is, to require that a larger sum should be realized and paid to the guardian, so called--he had no power to interfere for the protection of the infant, by directing or supervising the use of the proceeds.
At the time the act under consideration was passed there was a general law providing for the appointment of guardians, requiring bonds, the rendition of accounts, and proof to the satisfaction of the Probate Court of the necessity and propriety of sales, and conferring on the Probate Court or Judge a controlling direction over the property and proceeds. Acts had been passed, however, authorizing particular guardians, duly appointed and qualified, to sell the real estate of their wards, without the formalities or conditions required by the general law. We do not decide whether such special laws are constitutional; we think, however, the Legislature, by the act under consideration, intended to follow these precedents.
This is suggested by the title of the act: " An act to authorize the guardian of Francis William Paty to sell and convey certain real estate." The statute does not purport, in any part of it, to nominate Martha Ann Paty Dayley guardian of the infant: it simply assumes that she is, or--when the sale shall be made--will be the guardian of his estate; exercising the ordinary functions and charged with the ordinary responsibilities of guardians. The power was given to her in her capacity as guardian, and not as an individual; as she failed to secure an appointment as guardian, the attempted sale was void. The act does not purport to appoint her to that office; on the other hand, the word " guardian" is no more than descriptio personce, which might be disregarded. This is seen not only in the title of the act, but also in the language employed in the body of it. Thus, in the third section: " The said Martha Ann Paty Dayley shall account for the proceeds of said sales as for any other assets in her hands pertaining to said minor." This evidently contemplates her appointment as guardian, and her accountability to the Probate Judge for all the estate of the infant, including the proceeds of the special sales authorized by the act. It is the equivalent of a declaration that she should account for the proceeds of the land in like manner as she would be required by the general law to account for the rest of the estate. And the intention is perhaps made still more apparent by the fourth section, which provides that no sale shall be valid unless confirmed by the Probate Court.
Judgment and order denying new trial reversed, and cause remanded for a new trial.