Louis M. Gamble, Respondent, vs. The Jacksonville, Pensacola & Mobile Rail Road Company, Appellant, 14 Fla. 226

RANDALL, C. J., delivered the opinion of the court. An action was brought in the usual form under the Code, by the respondent, upon a draft drawn upon the Treasurer by the President of the Railroad Company and duly accepted. Upon the expiration of the time to answer, the defendant failed to answer, and judgment was entered by the clerk, in vacation, pursuant to

Section 197 of the Code. From this judgment the defendant appealed, and the single question juesented is, whether a judgment so entered by the clerk in vacation is constitutional and valid ? A judgment is defined in the books to be the decision dr sentence of the law, pronounced or given by a court, upon the effect of proceedings instituted in or before the court. At a very early day all the proceedings before the court were oral — the pleadings and the judgment or sentence— and the “ court”'was the judge who represented the king or the law.

The plaintiff or complaining party “ clamored ” in open court, in person, against the defendant, who was brought in person before the judge to answer. The judgment pronounced by the judge against the defendant .consigned him to prison, there to expiate the offence of being too poor to pay a sum of money, or of having trespassed upon the plaintiff’s grass, but“ in mercy ” the defendant vras discharged from duress upon his paying the sum or fine adjudged against him.

If judgment went .against the plaintiff, he was punished “ for his false clamor.” The progress of civilization has wrought great changes in the form .as well as in the substance of civil jurisprudence, and .now, with greater semblance of decency, the court is a department, having its various officers oí convenience, judges and juries, clerks and sheriffs.

The pleadings and adjudications have become records ; the stentorian voice of the judge is hushed to the mere scratch of á pen, and the gentlemanly clerk quietly attests the seal of authority which consigns the unfortunate suitor’s goods and chattels to the auction block. And so, the footprints of progress are discovered even in the chambers of Westminster. By the terms of the Code, the clerk of the court is required to enter a judgment for the amount demanded, if the defendant, who has had personal service of the summons, fails to answer.

Here two things required to be observed savor of judicial action, viz: a conclusion or judgment that service has been made, and that the defendant is in default, but the one is determined by reading the sheriff’s return, and the other by the áffidavit of the plaintiff’s attorney, and-both by the common rules of grammar. The only remaining fact to be ascertained is the amount due, which may be, by the simplest rules of arithmetic or the sworn statement of a party to an undisputed fact involving the exercise of no judicial discretion or ■ black-letter principles.

A sum of money being thus ascertained, the law directs that the clerk “ enter judgment ” in a book according to the recognized form. In all this, what is the necessity of a judge’s presence? But it is said the idea of a -judgment includes judicial power exercised by some one clothed with the necessary raiment, and that must be a person called a judge, because judges alone may exercise judicial authority, and therefore no judicial act may be done by a mere ministerial officer. This is the doctrine of the case cited by counsel for appellant, Hall vs.

Marks, 34 Ill. 358. “ The power to adjudge, determine and render a judgment is, beyond all question, a judicial act, and under this provision of the Constitution, [that no person being of one .department shall ex1 ereise any power properly belonging to another department,] can only be done b}7'a judicial officer. It belongs to that department, and if exercised by either of the others, it is void.” “ The consideration of the facts, and the application of the law to those facts, and the conclusion deduced by the court from the law and the facts, constitute a judgment.

The power to announce and have enforced this conclusion has been confided exclusively to the judiciary of our State government.” * * “ It would be a perversion of language to call a clerk of a court a judicial officer. He is attached-to the judicial department, but is only a ministerial officer of a court. He is only the instrument the law has designated, for convenience and the dispatch of business, to record the determination and sentence of the court. Every order or judgment he can lawfully enter, is the judicial sentence of the court.

He possesses no power to render a judgment, but only to enter it under the express or implied order of the judge in the exercise of judicial power.” And so the court puts the case upon that provision of the Constitution which prohibits officers of one department of the government exercising any power properly belonging to another, and upon that ground concludes that a law authorizing the clerk to enter judgments by default in vacation was unconstifional and void.

However correct may be the legal definition here given of judicial functions, I do not clearly see how the entry of a judgment of a court by the clerk of a ■court is the exercise by an officer of one department of government of the powers or duties pertaining to another -department ; and if it be considered in Illinois that the clerk of a court is an officer of some other than the judicial department of government, I see no escape from the conclusion that all the acts of the clerks of theif courts done in connection with the judicial department are totally void, and no judgment or decree entered by a clerk of a court has any validity whatever, nor, according to the same -logic, is' any judicial writ issued by a clerk of any value.

The issuing of an attachment or an execution, is.an exercise of and an enforcement of the law through judicial, pow-' er. According to the logic of the case cited, these writs cannot be issued by the clerk, nor can they be issued by any other than a judge. They further say that “ the case is not similar to, nor does it depend upon the power of the clerk to record a judgment confessed in vacation.

This is done by express authority from the debtor,” &c., but I again confess that I cannot see the power of the clerk in any different light in the one case or the other; for the entry of a judgment, involving a consideration of the premises, of the parties, of-the cause of action, and of the amount, and considering the conclusive nature of a judgment, requires equally the operation of judicial power in either case, and if a clerk may not enter a judgment by default in vacation because he is of another department and thus prohibited by the Constitution, no act of the parties can avoid the effect of the inhibition.

If the entry of a judgment in one case is a judicial act, it is equally so in the other, and no consent of parties can invest the clerk with the necessary judicial character. In the case from Wisconsin, (10 Wis. 469,) in which this

section of the Code was considered and the judgment entered by the clerk sustained, the court says, if it bo true, that the Code attempts to transfer to the clerk a portion of the judicial power, “ there can .be no doubt these provisions are unconstitutional, and that jirdgments entered in pursuance of them are illegal and void; ” but the court,in that case sustained the judgment so entered by the clerk, upon the ground that the court is, in contemplation of the law, always present, and that the act of the clerk is but the act of the court.

The practice of the courts in Great Britain ever since the system of written pleadings and proceedings were’ inaugurated, and in most of the American States, is cited as authority for the entering of judgments in vacation, with or without the actual presence of the judge. This practice has prevailed from the earliest period in the history of the States, and now prevails in the courts of the United States, the court' being con sidered open upon certain " rule days,” and judgments are taken whether the judge be present or not.

In Virginia, New York and others of the elder States, it has always prevailed without question. Judgments of this character are of course subject to the supervisory control of the court or judge, and may be corrected or set aside like other proceedings of the court and its officers.

I can discover nothing in. the Constitution which prohibits the Legislature from making provision for the entering of judgments in vacation as-well as in term time ; nor that prohibits the Legislature from authorizing a trial by the judge of the issues in any case in which a jury is not required, and the entry of judgment in pursuance thereof by the clerk.

And granting all that may be claimed as to-the judicial action involved in the entry of judgments by the clerk in vacation, upon ■ default, there is no provision of the Constitution of this State opposed to the vesting of the'necessary-power in the clerk of a court and making his action therein the act, pro tanto, of the court. The judicial power of the State is vested- in certain courts, and the Constitution provides for the appointment of a judge for each circuit and a clerk of the court for each county.

It does not specially vest the judicial function in the judge, nor in the clerk, and the one is equally an officer of the judicial department with the other. Looking to the common definition, of these offices, we conclude that the judge ordinarily pronounces the law and the clerk makes the record.

Ye ordinarily recognize the “ court ” in the actual presence of the judge and clerk, yet we all know that interlocutory judgments and orders which, in contemplation of law, are the judicial acts of the court, have from time immemorial been entered of record by attorneys, solicitors and clerks, when in -fact there was no judge of the court in existence, the statutes' and rules having prescribed and regulated such proceedings, and parties have been deemed bound by them as by the action of the court itself.

The Constitution empowers “ the courts ” to issue the necessary judicial writs, such as the summons, subpoena, execution, &c., in aid of the jurisdiction of the courts, but probably no lawyer questions the authority of the Legislature to confer the exercise of this power upon the clerk, who acts for and in the name of the court. The court is always present, always in existence, and if the judge be present or aN sent, suitors besiege it with complaints and declarations, pleas and demurrers, and the clerk receives the parchment and makes the entry in the record as an officer of the judicial department.

The office of Master in Chancery is judicial. Even the Master of the Rolls was Master in Chancery, and we recognize him as second only in dignity and power in his department in England. Yet he was a mere clerk or keeper of records, the chief of twelve, who, on account of the increase of business, were permitted to employ other clerks, and grew into importance as aids to the chancellor, finally emerged into judicial existence from the mere convenience of the chancellor. There is nothing alarming in the' character of the acts authorized by

Section 194 of the Code to be done by the clerk. There is no controversy, no issue to be decided by an arbiter. One wffio understands plain English language aud the rudiments of arithmetic, may correctly execute the simple directions of the law, though he may never have heard of Puffendorffi The clerk, upon a default, which he may discover by consulting the files, records the conclusion of the law as it is clearly pronounced through the prescribed rules of the court.

He is, in fact, directed by the court, through rules enacted by the Legislature or adopted by the court, to enter a judgment upon the happening of events necessarily coming within his knowledge, and practically his duty is merely ministerial or mechanical. In my judgment, the law authorizing the clerk to enter judgments upon default in vacation, is not in conflict with the Constitution of this State, and as the judgment in this case was so entered in conformity with the law, it should be affirmed. The judgment is affirmed.