Sacramento daily record-union., 1889-06-08

II. he respondents second objection is based
upon The averment in her answer IN substance
that the saic lestator len surviving him an he'll
o her than thO-e above mentioned 10 wit an
a:opted son, William Andrew stevens. u year.
OF age, regularly adopted by said ties ator on
August 20, 1873 It is conceded that if true this
fact would result in cutting down the petit n
er 5 cl>tllbutlve share from one-fourih OF said
estate as claimed by her 20 oUe-siXth thereof.
10 support this aVerment the respondent offered
IN evidence The record of certain proceedings
Gaq on the date alleged, before the then County
Judge OF sacramento county, by a J. Stevens,
the testator, and Lydia NJ, his wife. for the
adoption by them of the child Gow cal ed Wm.
4. stevens. These proceedings purport 10 have
} been taken under the provisions of the iVil
! ode governing the subject OF adoptiOu as they
lhen existed, and appear in all respects to con
form thereto. To this record the et toner OBJ
Jects upon several grounds, but among others
tASL the Whole proceeding was void and iuet-
lectual Tor the reason that the sections of the
code under which this adoption was sought to
De hdd were unconstitutional, in that the LegiS-
iature had no power to confer upon the
county Judre as such, and as distinct from tn.
COUNTY, Court, Jurisdiction of q proceeding OF
tilS character THIS Is the only point of objec-
ton care to Office. At the date of said pro
ceeGing. III lS3S, the provisions of the Civil Code
relating 10 adoption were. and vet are Sections
II 10 25O, iLcluslve Sections ri TO 225 provide
uEoer what circumstances q cnid may be
tdoPted section 20 provides The yersOu
adopting child and the child adopted and the
OLGeI pSrs0nE. whose consent i EeCeS-
Sary, must appear before the C0u7Fg JgGqe OF the
county where the person adopting RESIDES"
WnSTe necessary consent must 5e signed, agree
men eEecu eG. etc. sect or ~ provides that
me Judge must tNaDiue all peTsOls appearing
before nun pursuant 10 the last ecJlou each
enid N be promoted 5y The ado, ton he must make
an order declaring that the child shah thence
Tor b regarded ana treated in all respects as
i1e On Id o. the person ad0ptingn lila les in
above quotations "D.gl te9red.l
IL Will be o25erys q .hat the p-Occe ling thus
provided tor Is Ju iical il is Character and not
mercy ministerial. The functions to be per-
formed oy the Jud-e under Section 227 are
clea " OF ild cial nature The Judge must
examine all persons appearing before in y
CHd u Gfis'et ttCt the interests Of The ct2d nil he
promoted must make an CIDER" etc
THIS language clearly Vestin& the officer with
yDCIc3al GlsciellOI OF an unmiStaEabie and very
important char cter. It Will be further OBJ
served .Eat the proceeding is nos required to be
commenced in any Court or in any manner con-
ntcied herewith. but 5 10 be had before the
county Judge aS such, ii capacity separate
ana apart from the dntleS cast upon him in con-
lcciI0l with case or proceeding il such
Court, the Y,illuus sections nowhere referring to
'ue county Court in any such manner or CON /
neciion as 20 indicate an tn.e-tion II The legis-
latsve mind 70 vest Jurisdiction OF this prCcee:-
liz herein, or III any way characterize It as q
court proceeding. From the language used IL
was undoubtedly the intention Of the Iegisla-
tCce TO create the individual hOIding
the Office @ County Judge into q iuEicisj
tribunal and vest IN him jurisdiction to hear
&ud determine proceedings Of this paTticuIar
class. he oceeGing provided tOr IS Of 2
SPacl2l chAFlr.eT. 4. is one usnOTD 70 the -on-
mon Jaw and the rights intended TO be confer
red by IL are repuCnGut 10 common law urluci
pies. II Is Therefore special case or pr ceed-
lug rs distinguished liOm those ses or pro-
ceeq-Dgs had, rs 1t Is termed, in accordance
with the course Of the common law tFsryus1u
Is. J0n.S, 20 Pac. Rep SI2 Slhe Constitution of
the state in force at the date Of these p-rraod
-
-la.e shall be FeS Cd IN a supreme Court in
D-tTics Courts, IN County Courts, in Probate
Courts and IN justices Of Il g Peace, and in such
Recorders and Other Inferior Courts as the Leg
ISL ature m5y establish in any iucorrOrated civ
or town see. !. ArG t C0ust 1861 L further
provided INA, the County Court shall have
special case-'and rocccdiugs as are not otherwise
provided for So 90 lSgc art & Gr,1s+
7. 63) Under these provisions OF the Consti,u-
non II case arising der statute comforting
(Teme Court OF tllS state says after referring 10
the provisions OF the Constitution The CUES.
'loa Therefore arises whether, under the Con
s.ltu.iOo, the : gistatC-e has cpmpetsut no.yer
ton in special cases; for il is beyond
question that the County Judge is not the
t'luty Goutt, nd although the Legislature may
avi iEorze the Judges Of the several Courts 20
.5tJEn ceran duties at chamber n respect TO
proceeding IS N !, Csc, yet some Court has juris-
Iicti3n OF me cause, and the Judge, in cham
l-aa4 Ftli'--4tE tl llE same CT another Court
acts rs Ii Commissioner. or in some other cana.
city, merely ia Gld Of and subordinate to the
Court having isdl, ton Of the cause. Il being
We think reEG-d dispute. thar d County Judge
Is not Jh- Comfy Cont, Il Jurisdiction ofSaec Il
cases C0-lu he con erred upon the County Judge
il is equally competent - the legislature 10
confer IL np0n tne County clerk. Recorder or
Sheriff or 80 create a Eew tribunal for the eyeI-
else Cf such jurisdiction And the Court con- /
ciu-es. It IS our opinion that the Legislature
j. not Authorized 10 provide for the exercise OF
such jurisdiction by any tribunal other than
one oil he Courts provided tor by the Coust!tu-
..ou, S.d that statute which grants such uT
cJloG 20 a Judicial officer cannot be upheld" -"
There would seem to be no cscuce from the gp-
D.ieatiOu Of this doctrine to the case at bar I
me eases are 10 my mind strictly analogous I
and the conclusion IS inevitable that the Drovi
SONS Of the Civil Code, as they existed mt the
date N question, 50 far as they attempt TO CON
-er JURISDICTION oI the proceeding upon the
county JGige, are obnoxious 10 the provisions
c-ted and unconstitutional see also concurring
opinions OF Mcklnstry and Myrick, !. j., in
tnoilar Mining Co. Us. Wilson, &c Cal 577)
p result the proceedings bad for the a6up-
:ton o! The child Wn. Andrew Stevens are sub
Ject - the objection made and void It follows
ihat She petitioner is entitled to = distributiye
snare I'D ;ne testatOr's estate of One-iOurth OF
the residue thereof, and no question OF exDedi
ency appearing "ny such partial distribution
sGoald not be made at this time & decree will be
entered As prayed for upon petitioner execut-
ing good and sufficient bond in proper form in
the sum of sl,5Co. ". c. VAN FLEET, Judge.