ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA.
MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.
The principal assignment of error is, that, under the Constitution of California prior to 1880, the Probate Court could not take jurisdiction of a proceeding to partition real estate. It is contended that its control over the estate ceased when it approved the final settlement, and, by a decree of distribution, defined the nature and extent of the interests of the heirs in the remaining estate of the decedent. A partition severing the unity of possession among the heirs, and investing each with a right, as against the others, to the exclusive possession and ownership of distinct parts of the estate, could not, it is insisted, have been constitutionally effected by proceedings in a Probate Court. These questions have received the most careful consideration, as well because of their intrinsic importance, as because their determination by this court, as we are informed by counsel, may seriously affect the title to large bodies of land in California.
Tracing the course of legislation in California in reference to the jurisdiction and powers of the Probate Courts of that State, we find that the first statute upon the subject is that of April 22, 1850, entitled "An Act to regulate the Settlement of the Estates of Deceased Persons." Stat. California, 1850-53, c. 129, p. 377. Another statute was passed May 1, 1851, having a similar title, and covering the same subject. Compiled Laws California 1850, c. 120, pp. 377 to 423. The provisions of these statutes relating to proceedings in the Probate Courts for the final settlement, distribution, and partition of estates were continued without material change, and the powers of those courts enlarged, by the Code of Civil Procedure. The sections of the code bearing upon the question of the jurisdiction and powers of those courts are too numerous to be incorporated in this opinion. It is sufficient to say that upon a careful examination of them, we are of opinion that it was the intention of the legislature to invest Probate Courts with authority, in connection with, and as ancillary or supplementary to, the settlement and distribution of estates, to make partition of real property -- where the title of the deceased owner and the heirship of the parties are undisputed -- so as to invest each heir with a separate title to the particular part or parts allotted to him by the decree of partition. No other interpretation is consistent with the words of the code. §§ 1581, 1634, 1665, 1666, 1668, 1675, 1676 to 1686, inclusive.
Does the state constitution prohibit the partition of real estate by proceedings in a Probate Court? The contention of the plaintiffs is, that exclusive original jurisdiction of such proceedings is given to District Courts, and that partition is foreign to the probate system as recognized in that instrument.
By the constitution of California, in force at the time partition was made of the estate in question, the judicial power of the State was "vested in a Supreme Court, in District Courts, in County Courts, in Probate Courts, and in justices of the peace, and in such Recorders' and other inferior courts as the legislature may establish in any incorporated city or town;" and the Supreme Court, the District, County, Probate, and
such other courts as the legislature should prescribe, were declared to be courts of record. Const. of 1849, amended in 1862, Art. VI, §§ 1, 9. The Supreme Court is invested with appellate jurisdiction in all cases in equity; in all cases at law involving the title or possession of real estate, or the legality of any tax, impost, assessment, toll or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars; in all cases arising in the Probate Courts; and in all criminal cases amounting to felony, on questions of law. It also has "power to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and also all writs necessary or proper to the complete exercise of its appellate jurisdiction." Id. § 4.
The constitution of 1849 provided that the District Courts "shall have original jurisdiction in law and equity in all civil cases where the amount in dispute exceeds two hundred dollars, exclusive of interest. In all criminal cases not otherwise provided for, and in all issues of fact joined in the Probate Courts, their jurisdiction shall be unlimited." Const. 1849, Art. VI, § 6. But in 1862 the constitution was amended, and in lieu of that section the following was substituted: "The District Courts shall have original jurisdiction in all cases in equity; also, in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars; and also in all criminal cases not otherwise provided for. The District Courts ad their judges shall have power to issue writs of habeas corpus, on petition by or on behalf of any person held in actual custody, in their respective districts." Const. 1862, Art. VI, § 6.
The constitution of 1849, also, provided for the election of a county judge in each organized county, who "shall hold the County Court, and perform the duties of surrogate or probate judge," and, with two justices of the peace, "shall hold Courts of Sessions, with such criminal jurisdiction as the legislature shall prescribe; and he shall perform such other duties as
shall be required by law." It was further provided that "the County Courts shall have such jurisdiction in cases arising in justices' courts, and in special cases, as the legislature may prescribe, but shall have no original civil jurisdiction except in such special cases." Const. 1849, art. VI, §§ 8 and 9. But by the amendments of 1862 the powers and jurisdiction of County Courts were greatly enlarged, as will be seen from the following section adopted in lieu of those just cited: "Section 8. The County Courts shall have original jurisdiction of actions of forcible entry and detainer, of proceedings in insolvency, of actions to prevent or abate a nuisance, and of all such special cases and proceedings as are not otherwise provided for; and also such criminal jurisdiction as the legislature may prescribe; they shall also have appellate jurisdiction in all cases arising in courts held by justices of the peace and recorders, and in such inferior courts as may be established in pursuance of section one of this article, in their respective counties. The county judges shall also hold in their several counties Probate Courts, and perform such duties as probate judges as may be prescribed by law. The county courts and their judges shall also have power to issue writs of habeas corpus, on petition by or on behalf of any person in actual custody in their respective counties."
The argument in behalf of the plaintiffs, briefly stated, is, that the legislature could not confer upon County Courts jurisdiction of suits or matters of which original jurisdiction is given by the constitution to District Courts; that whether a proceeding for partition be regarded as a case in equity, or a case at law involving the title or possession of real property, it is within the original, and, therefore, exclusive jurisdiction of a District Court; and that the provision requiring county judges to hold "probate Courts," "and perform such duties as probate judges as may be prescribed by law," did not authorize the legislature to invest Probate Courts with jurisdiction, concurrent with District Courts, in cases of which the latter were, by express words, given original jurisdiction. It must be confessed that some support for this position is found in the general language employed in Zander v. Coe, 5
California, 230, People v. Fowler, 9 California, 85, and Caulfield v. Stevens, 28 California, 118. In Zander v. Coe, the court proceeded upon the ground that the legislature could not confer on one court the functions and powers which had been conferred by the constitution upon another court. In People v. Fowler, 9 California, 85 -- where the question was as to the constitutionality of a statute giving an appeal to the Court of Sessions from a judgment in a criminal case tried in a justice's court -- the court, referring to Zander v. Coe, and previous cases, said: "The rule of construction established by these decisions is this: That when certain powers are, in form affirmatively, bestowed upon certain courts, they are still exclusive, unless there be some exception specified in the constitution itself, or the power to prescribe the cases to which the jurisdiction should extend be expressly given to the legislature. For example: there is affirmatively conferred upon the District ...