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or loan its money or credit to or in aid of any individual or corporation, or become the owner of stock in or bonds of such corporation. These prohibitions are general and applicable to all cities alike, without regard to population. A further restriction upon the power to create debts given for city purposes is also placed upon cities containing over one hundred thousand in

statute in question. As it is conceded that Syracuse contains less than one hundred thousand population, and as it is obvious that the bonds to be issued for a water supply is a city purpose, we are clear that the prohibition does not apply to the statute under consideration.

nected therewith, together with the regulation at all times of the flow of water from the lake into the pipe were to remain; all necessary repairs to be made under his direction at the expense of the city. He was authorized and required if, for any reason, the flow of water into the pipe impaired the necessary and sufficient supply for the use of the Erie canal, to stop such flow, in whole or in part, whenever in his judg-habitants, which the plaintiff invokes to nullify the ment it was necessary in order to secure a full supply for the canal. The rights of the city in and to the use of the surplus waters of the lake conferred by the act were expressly declared to be, at all times, subject to the superior claims of the State thereto, and power was given to the State engineer to prescribe the plan of construction of the gate-house, or other means, for delivering the water of the lake into the pipe. It was further provided that the city should at all times protect and save the State harmless from and against all claims and demands of riparian owners, upon the lake and outlet, for loss or damage occasioned by any act or structure authorized by the statute, and that before any water was taken from the lake the city should acquire or extinguish all water power rights upon the outlet to be affected by the proposed storage of water, and subject to these restrictions general power was given to the board to perform all acts and acquire all property necessary or proper to enable the city to store and obtain water from the lake. It appears from the findings that Skaneateles lake is a body of water distant about seventeen miles from Syracuse. Its length is about fifteen miles, and its general width about one mile, with a surface area of about thirteen square miles and a water-shed, including the surface, of seventy-three and one-fourth square miles. It is about four hundred and fifty-three feet above the Jordan level of the Erie canal, and discharges its water through an outlet known as Skaneateles creek, about ten miles long, into the Seneca river, thence into the Oswego river and into Lake Ontario. The lake has been for many years navigated by steamboats and other crafts, but there is no navigable communication between it and any other waters.

The controversy between the parties requires this court to pass upon the validity of an act of the Legislature. The principles governing such an inquiry were well stated by Ruger, Ch. J., in People v. Angle, 109 N. Y. 567: "Within settled rules it requires a case to be made showing clearly that the statute, when fairly and reasonably construed, is brought into conflict with some provision of the Constitution, before the court can be justified in pronouncing it an unauthorized expression of the legislative will. If the act and the Constitution can be so construed as to enable both to stand, and each can be given a legitimate office to perform, it is the duty of the court to give them such construction; but if this cannot be doue it is equally our duty to declare the supremacy of the constitutional provision and the nullity of the statute.

While every

presumption is in favor of the constitutionality of the law, if nevertheless it appears that its enforcement must necessarily produce a conflict with the letter or spirit of the Constitution, it is the duty of the court to condemn the law."

The bonds of the city which this statute authorized the board to issue had more than twenty years to run, and as already observed no sinking fund was provided

for. The plaintiff contends that for this reason the act violates section 11 of article 8 of the Constitution, which limits the power of certain cities to contract debts and issue money obligations. This section does forbid the creation of any debt by any city except for city purposes, and this is the only restriction which the Constitution imposes upon the power of the Legislature to authorize cities not containing a population of over one hundred thousand inhabitants to incur indebtedness. No city can give any money or property

The first two paragraphs of the section, as it now stands, were adopted in 1874, and they apply to all cities, but exclude from the restrictions upon the power to create debts such obligations as are given for municipal purposes. The remainder of the section was adopted in 1884, and does impose restrictions upon the power to create debts and levy taxes even for city purposes, but these restrictions, as already observed, are limited to cities of more than one hundred thousand inhabitants, and to counties containing such a city. In giving construction to a provision of the Coustitution, its history and the conditions and circumstances attending its adoption must be kept in view, and the effect of subsequent amendments are determined by the same rules applicable to the interpretation of statutes. People v. Angle, supra.

The general policy of the State to restrict the power of cities and villages, in respect to the power of taxation, borrowing money and contracting debts indicated in section 9, article 8 of the Constitution as adopted in 1846, and chapter 603 of the Laws of 1853, has found expression, with the exception above referred to, only in acts of the Legislature, mostly incorporated into the charters of particular, municipalities, and occasionally by some act of a more general character, all of which are of course subject to modification or repeal. Neither this policy nor the necessity which may be conceded for restraining in this respect the smaller as well as the larger cities would warrant us in declaring an act of the Legislature, authorizing the city of Syracuse to incur a debt of $3,000,000 for the purpose of a water supply, invalid. Nothing short of a constitutional prohibition would justify such a result, and this we cannot find in the section referred to, either in express words or by fair and reasonable construction.

The act does not offend against section 16 of article 3 of the Constitution, which provides that no local or private bill shall embrace more than one subject, and that shall be expressed in the title. The title of the bill in question is "An act to establish and maintain a water department in and for the city of Syracuse." Under this title the Legislature could properly insert not only every provision necessary for the organization of such a department as an official body, but also provisions conferring power upon that body to supply the city and the inhabitants with water. It could create the department and in the same bill prescribe its powers and duties with such particularity and detail as in its judgment might be deemed necessary, without offending against this clause of the Constitution. It is necessary that the title be such as to fairly suggest or give clue to the subject; but when that is expressed, all matters fairly and reasonably connected with it and all measures which will or may facilitate its accomplishment are proper to be incorporated in the act and are germane to the title. Astor v. Arcade R. Co., 113 N. Y. 93, 110.

None of the provisions of the act are of such a character that it can properly be said that the public, or the members of the Legislature, were or could have been deceived by the title in regard to the details.

Power to conduct water through pipes from reservoirs to be constructed, and to distribute the same to the city and its inhabitants, could fairly be anticipated among the provisions of an act with such a title. The authority conferred upon the board by the statute is, we think, fairly within the scope of the subject as expressed in the title. City of Rochester v. Briggs, 50 N. Y. 553; Cooley Const. Lim. 172; Wrought Iron Bridge Co. v. Town of Attica, 119 N. Y. 204; In Matter of Mayor, etc., 99 id. 569.

The important provisions of the bill are to be found in section 18, as amended in 1890. There it is that the Legislature attempted to confer power upon the water board to take water from Skaneateles lake, and it is contended, in behalf of the plaintiff, that this section is in conflict with section 6 of article 7 of the Constitution, which provides that the Legislature shall not sell, lease or otherwise dispose of the Erie and certain other canals, "but they shall remain the property of the State, and under its management forever."

In the year 1843 the canal board, by the authority of the statutes, appropriated the lake for the use of the canal. The resolution of the board which accomplished this result is as follows:

"Resolved, that the waters of the Skaneateles lake and the outlet of the same be and they are hereby appropriated to the use of the public for a reservoir and feeder to the Erie canal."

To carry this resolution into effect lands were taken at the foot of the lake which included the dam and water rights at that point. This dam, nine feet high, has ever since been maintained by the State, and the flow of water into the outlet is regulated by the use of gates in the dam, which since the appropriation have been under the control and management of an employee of the State. About nine miles below, at the village of Jordan, another dam had been constructed across the outlet, by means of which a portion of the water from the lake is discharged into the canal. An aqueduct constructed under the canal permits the flow of that part of the stream, not used for canal purposes, beneath the canal through its natural channel on to the Seneca river, which is but a short distance from this point. Between the lake and the canal numerous mills are situated along the outlet, being supplied with power from the running water, and these are some of the water rights referred to in the statute which the city is bound to purchase or extinguish. During the time, in every year, when the canals are closed, a volume of water has been permitted to flow through the gates of the dam at the foot of the lake for the use of the mills along the outlet, except for several periods in different years, when the water was held back in order to increase the storage or for the purpose of repairs. The court below found that the quantity of water thus ordinarily permitted to flow was about fifty million gallons per day, which has never been utilized by the State for canal purposes. The carrying capacity of the thirty-inch pipe, authorized by the act to be laid, is found to be fifteen million gallons per day, and that quantity drawn per day would be equivalent in one month to two inches in depth from the surface of the lake. We think that the permission given by this act to the city of Syracuse to take water from the lake not required for the use of the Erie canal, is not in conflict with that provision of the Constitution which forbids the sale of the canal and secures its ownership and management to the State forever. Applying a fair and reasonable construction to this limitation, the statute is not within either its letter or spirit. The management of the canal must under this provision devolve upon the Legislature and such officers of the State as are charged with duties in that regard by the Constitution. This power of management implies discretion in many matters of detail. What the framers of the Constitution intended by this provision was that the

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canal as a highway of communication should not be sold or leased, but remain the property of the State and forever under its management, in order to promote the commercial prosperity of the people. Within the water-shed of the canal, from the Hudson river to the lakes, there have been appropriated to the use of navigation the waters of numerous streams, small lakes and ponds, as feeders and reservoirs for the canals. The use of these waters by riparian owners and even by cities that have grown up upon the line of the canal, for domestic or manufacturing purposes, subject to the paramount right of the State, is entirely consistent with the public use to which they have been devoted, and this must have been contemplated when the appropriation was made.

A statute therefore permitting a city to draw from one of these lakes for its own use water which the State does not need for the use of the canal, is not inconsistent with the integrity of the canal system, as a highway of commerce, nor is it in conflict with the Constitution. In regard to all these objections urged against the validity of the statute, we have no difficulty in agreeing with the reasons and conclusions of the General Term. The court however found that the statute was invalid under another provision of the Constitution. Article 1, section 9 provides that the assent of two-thirds of the members elected to each branch of the Legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes. The trial court found and it is conceded that neither the original act of 1889, nor the amendment of 1890, received the vote of two-thirds of the members elected to each house. The General Term has held that, for this reason, the eighteenth section, as amended in 1890, was never legally enacted.

This brings us to the question whether the bill or any part of it was in fact one appropriating public property for local or private purposes, within the meaning of this provision of the Constitution. There is no doubt that the State, in some sense, has a certain property right in Skaneateles lake and its outlet. Lands appropriated by the canal authorities for the use of the canal under the statute are held by the State in fee. Heacock v. State, 105 N. Y. 248; Mark v. State, 97 id. 572; Rexford v. Knight, 11 id. 308. But it was not land as such that the State appropriated in this case, but water. It becomes important therefore to determine the nature and quality of the right or interest which the State acquired in the waters of the lake and outlet. It is a principle recognized in the jurisprudence of every civilized people, from the earliest times, that no absolute property can be acquired in flowing water. Like air, light, or the heat of the sun, it has none of the attributes commonly ascribed to property, and is not the subject of exclusive dominion or control.

As Blackstone observes (2 Black. Com. 18): "Water is a movable, wandering thing, and must of necessity continue common by the law of nature; so that I can have only a temporary, transient, usufructuary property therein." While the right to its use, as it flows along in a body, may become a property right, yet the water itself, the corpus of the streani, never becomes, or in the nature of things can become, the subject of fixed appropriation or exclusive dominion, in the sense that property in the water itself can be acquired, or become the subject of transmission from one to another. Neither sovereign nor subject can acquire any thing more than a mere usufructuary right therein, and in this case the State never acquired or could acquire, the ownership of the aggregated drops that composed the mass of flowing water in the lake and outlet, though it could and did acquire the right to its use. These propositions have been often stated by jurists, and in judicial decisions in different forms, but it is

NATURALIZATION - MUNICIPAL COURT-
ACT OF CONGRESS, APRIL 14, 1802-UNITED
STATES REVISED STATUTES, § 2165.

MATTER OF DEAN.*

believed that they all concur in the same general result. Smith 7. City of Rochester, 92 N. Y. 475; Clinton v. Myers, 46 id. 516; Pixley v. Clark, 35 id. 424; Mayor v. Commissioners of Spring Garden, 7 Penn. St. 348; Tyler v. Wilkinson, 4 Mason, 397; Liggins v. Inge, 7 Bing. 682; Kensit v. Great Eastern Ry. Co., L. R., 23 SUPREME JUDICIAL COURT OF MAINE, MAY 29, 1891. Ch. Div. 566; L. R., 27 id. 122; People v. N. Y. & M. B. Ry. Co., 84 N. Y. 568; Pufendorf Laws of Nature and Nations, book 4, chap. 5; Vattel, lib. 1, chap. 20, § 234; 2 Black. Com., p. 14; 3 Kent Com. 439, 440; Gould > Waters, §§ 204, 209. The only property right therefore which the State acquired or ever had in the waters of Skaneateles lake and its outlet is the right to divert and use the same in such quantities as may be necessary for the use and operation of the canal. Silsby Mfg. Co. v. State, 104 N. Y. 562.

Subject to this paramount right, the riparian owners may use the waters of the lake and stream for domestic or manufacturing purposes, and the public as a highway for boats and other craft. We think that the conditions of the grant to the city of Syracuse are such that no property right or interest, which the State has or ever had, is transferred, lost or impaired. After all the provisions of the statute are executed, the State will possess and enjoy every right, with respect to those waters, that it did before, and if this is so then no public property is transferred by the act from the State to the city.

The same result will follow if it be assumed that the State still retains its original proprietary right to the waters and the bed of the lake. As such proprietor simply it would have no greater right to use or divert the water than any other riparian owner. Its paramount right to so use and divert it is not derived from its original ownership, but from the exercise of the right of eminent domain. The rights thus acquired are broader than duy that it possessed or could exercise as proprietor. It is not found that it has any other property in the waters of the lake than was acquired by the appropriation made by the canal board; but if it be conceded that the learned counsel for the plaintiff is right in his contention that the State owns the soil of the bed of the lake, such ownership is nevertheless subject to every easement and servitude necessary to the use of the water by the other riparian owners, so far as they may be entitled to use the same. Smith v. City of Rochester, 92 N. Y. 480.

If the city of Syracuse shall acquire lands upon the shores of the lake, the use of the soil under the water for the purpose of placing a pipe therein, is no invasion of any exclusive property right which the State has in such soil. We are of the opinion that no public property was appropriated by this act to local or private purposes. Aside from the reasons above stated, it may be observed that the word "appropriating," as used in this section of the Constitution, refers to a transfer of public property as a gift or gratuity, and not to some right in or privilege connected with property belonging to the State transferred for an equivalent. By the provisions of the statute, the reservoir is to be enlarged and its storage capacity greatly increased and forever maintained at the expense of the city. The arrangement contemplated by the statute is one which, in the judgment of the Legislature, would be mutually and equally advantageous to the city and the State, and such a law is not within the reason or purpose of the constitutional provision referred to. We think that the statute is not in conflict with any provision of the fundamental law and is valid.

The judgment of the General Term should be reversed and that of the Special Term affirmed, with

costs.

All concur except RUGER, Ch. J., not voting; ANDREWS, J., not sitting, and FINCH, J., absent.

The Municipal Court of the city of Biddeford January 24, 1888, did not have a clerk within the intent and meaning of the Federal statute (U. S. R. S., §2165), and therefore had no jurisdiction over applications for naturalization of aliens, and no authority to receive and record their decla rations of intention to become naturalized.

ON exceptions. This was a petition of William Dean,

an alien, praying for admission to citizenship. The petitioner came to the United States from England after he was eighteen years of age and more than five years before the date of his petition, intending to become a citizen, and has ever since resided in the United States. More than two years prior to this hearing he had made and filed a declaration of his intention to become a citizen. By the declaration it appeared to have been made before Edwin J. Cram, recorder of the Municipal Court of the city of Biddeford.

Upon this petition the presiding justice ruled:

(1) That the Municipal Court of the city of Biddeford, on the 24th day of January, 1888, was not a court of competent authority under the laws of the United States to admit aliens to naturalization, and had no jurisdiction over the application therefor.

(2) That if said court at said date had power to naturalize aliens, it does not appear that the petitioner's declaration of intention made before Edwin J. Cram, recorder of the Municipal Court of Biddeford, on said 24th day of January, 1888, was made in compliance with the laws of the United States requiring a declaration of intention to be made by such aliens desiring to be admitted to citizenship.

(3) That for the reason aforesaid the petition be dismissed.

To these rulings the petitioner excepted.
W. F. Lunt, for petitioner.

Counsel argued that the court exercised common-
law jurisdiction. It is not necessary that it should
be full and complete; it is enough if it may exercise
Counsel
any part of the common-law jurisdiction.
cited: 2 Whart. Dig. Int. Law, 346; U. S. v. Lehman,
39 Fed. Rep. 49; Ex parte Conner, 39 Cal. 98; State v.
Whittemore, 50 N. H. 245; Ex parte Gladhill, 8 Metc.
Ex parte Craig, 2 Curt. C. C. 98; U. S. v. Power,
14 Blatchf. 223; Ex parte Tweedy, 22 Fed. Rep. 84;
People v. McGowan, 77 Ill. 644; S. C., 20 Am. Rep. 254;
Morgan v. Dudley, 68 Am. Dec. 735.

168:

H. H. Burbank, contra.

The clerk or recorder, within the meaning of the United States statute, must be a person other than the judge. By statute and at common law, the clerk's functions are limited to purely clerical work, and his duties are fixed and imposed by law. They do not act judicially, and are distinct from an amanuensis or persons rendering service voluntarily. In his sphere he is a responsible and independent official. The recorder is here a vice-judge. He has no function, clerical or judicial, when the judge is present holding

court.

It is impossible for a declaration to be lawfully made by an alien, before a clerk of the Biddeford Municipal Court, because if done in the court-room there is but one official authorized to act judicially or clerically, at

*S. C., 83 Me. 489.

any particular time, namely, the judge or the recorder when acting as judge, and so there is no clerk distinct from the judge. If done away from the court-room, it might be that the judge was acting in the room and the recorder would be acting without authority.

R. P. Tapley, in reply.

cer.

The requirements of Congress are only to insure a competent tribunal, and a record of its proceedings, so that the evidence may be preserved, etc. This being done, the real purposes of the statute are accomplished; all other things a matter of form. Whether clerk or recorder, it cannot matter by what name he is called. His powers and duties are defined by the law. There is no absolute requirement that the recording officer shall be a person distinct from the judge. Here there is an independent recording offiThe court has the means of recording and authenticating its proceedings in all cases. The Federal law makes no provision concerning the manner of conducting the business in the court. Stephens, Petitioner, 4 Gray, 559. The oath of intention may be made before any qualified officer of the court. U. S. R. S., $2165; filed before the clerk. Act of 1876. In those cases where the judge performs his judicial functions, and requires the recorder to make the record, it has such clerk, distinct from the judge, and doing that which the judge cannot do, viz., receiving the applications.

As

WHITEHOUSE, J. This is an application by an alien seeking to become a citizen of the United States. evidence of the previous declaration of his intention to be naturalized, required by the act of Congress, the applicant produced a copy of a declaration made by him January 24, 1888, before Edwin J. Cram, recorder of the Municipal Court of the city of Biddeford, attested by "Edwin J. Cram, recorder." Under the Federal statutes only those courts that are authorized to naturalize are authorized to receive and record this declaration of intention. The question here presented therefore is whether the Municipal Court of Biddeford was a court of competent authority under the laws of the United States to admit aliens to citizenship. The presiding judge ruled that it was not, and for that reason dismissed the petition.

The Federal Constitution confers upon Congress the power" to establish an uniform rule of naturalization." In the exercise of this authority Congress enacted the statute of April 14, 1802, prescribing the conditions of naturalization. By that act the preliminary declaration might be made on oath or affirmation "before the Supreme, Superior, District or Circuit Court of some one of the States." Then follows this provision in the third section of the act: "And whereas doubts have arisen whether certain courts of record in some of the States are included within the description of district or circuit courts, be it further enacted that any court of record in any individual State having common-law jurisdiction and a seal and clerk or prothonotary, shall be considered a district court within the meaning of this act." In section 2165 of the last revision of the United States statutes the courts thus authorized to naturalize aliens are specified as follows: "A circuit or district court of the United States, or a district or supreme court of the Territories, or a court of record of any of the States having common-law jurisdiction and a seal and

clerk."

1. Was the Municipal Court of the city of Biddeford, January 24, 1888, a "court of record having commonlaw jurisdiction," within the meaning of the act of Congress of April 14, 1802?

Section 1 of chapter 151 of the Public Laws of 1855, and acts amendatory thereof, establishing the Municipal Court of Biddeford as constituted January 24, 1888,

provide that it " shall be a court of record with a seal, and said court shall consist of one judge to be appointed, qualified and hold his office according to the Constitution, and shall exercise concurrent jurisdiction with justices of the peace and quorum over all matters and things, civil and criminal, within the county of York, as are by law within the jurisdiction of justices of the peace and quorum in said county; and original jurisdiction concurrent with the Supreme Judicial Court in all civil actions in which the debt or damages shall not exceed the sum of $100, and shall have original jurisdiction concurrent with the Supreme Judicial Court over crimes, offenses and misdemeanors committed in said county which are by law punishable by fine not exceeding $20, and by imprisonment in the county jail not exceeding three months."

Section 4 provides that "it shall be the duty of the judge of said court to make and keep the records of said court, or cause the same to be made and kept, and to perform all other duties required of similar tribunals, and copies of the records of said court, duly certified by the judge, shall be legal evidence in all courts."

Section 5 is as follows: "The judge shall appoint a recorder who shall be a justice of the peace and of the quorum, duly qualified, who shall be sworn by said judge, and who shall keep the records of said court when requested so to do by said judge, and in case of absence from the court-room or sickness of the judge, or whenever requested by him so to do, or when the office of judge shall be vacant, the recorder shall have and exercise all the powers of the judge and perform all the duties required in this act of the judge, and generally shall be fully empowered to sign and to issue all processes and papers and do all acts as fully and with the same effect as the judge could do were he acting in the premises; and the signature of the recorder as such shall be sufficient evidence of his right to act instead of the judge, without any recital of the act hereinbefore named authorizing him to act. When the office of judge is vacant the recorder shall be entitled to the fees, in all other cases he shall be paid by the judge." Chapter 247 of the Special Laws of 1887 provides that the judge shall receive an annual salary of $1,400 which shall be in full for all his services and the services of the recorder.

The

court of record" required by the Federal statute is not simply a tribunal that has a recording officer and seal, and in fact keeps a permanent record of its proceedings; for the Probate Court and the Court of the County Commissioners would fulfill all of these requirements, and yet neither of these tribunals is deemed to be technically a court of record. It must be an organized judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of the common law. It is distinguishable from the case of a justice of the peace on whom personally certain judicial powers are conferred by law. Ex parte Gladhill, 8 Metc. 168; Anderson Law Dict.

Two centuries ago in the case of Groenvelt v. Burwell, 1 Salk. 200, Chief Justice Holt said: "Whenever a power is given to examine, hear and punish, it is a judicial power, and they in whom it is reposed act as judges, and wherever there is jurisdiction erected with power to fine and imprison, that is a court of record, and what is there done is matter of record." Blackstone adopts this statement, adding that the proceedings of a court of record are enrolled for a perpetual memorial, and then distinguishes a "court not of record" as one that can "hold no plea of matters cognizable by the common law unless under the value of forty shillings, nor of any forcible injury whatever." 3 Black. Com. 24. Thus in Woodman v. Somerset, 37 Me. 33,

Chief Justice Shepley says: "A court of record is one
which has jurisdiction to fine or imprison, or one having
jurisdiction of civil cases above forty shillings and pro-
ceeding according to the course of the common law."
It was a distinguishing feature of it that at common
law its judgments were reviewable only by writ of
error. Accordingly in the Matter of Gladhill, Peti-
tioner, 8 Metc., supra, Chief Justice Shaw says of the
Police Court of Lowell in 1844: "We are of opinion
that it is a court of record coming within the descrip-
tion in the act of Congress. It possesses all the char-
acteristics of a court of record. Section 6 directs the
keeping of a fair record. It is not necessary to decide
here whether a justice's court is a court of record. The
point is left undecided in Smith v. Morrison, 22 Pick.
430. That a writ of error will lie on a justice's judg-
ment is well settled, and the object of a writ of error
is to remove a record. It will not lie to a judgment of
a probate court because not technically a court of rec-
ord. Probably the result may be, from an examina-
tion of all the statutes regulating the jurisdiction of
justices of the peace, that their courts will be regarded
as courts of record for some purposes, but not in all
respects. But we think the decision in this case does
not depend upon the legal character of the courts held
by justices of the peace. Many powers are vested in
the Police Court of Lowell not conferred on justices of
the peace; its constitution is different and its mode of
proceeding is different. That this court exercises a
common-law jurisdiction there is no doubt; it is au-
thorized to hear and determine all complaints and
prosecutions in like manner as justices of the peace,
and has jurisdiction of all civil suits and actions cog-
nizable by justices of the peace." In Ex parte Craig,
2 Curtis C. C. 98, Judge Curtis says: "We see no sound
reason to doubt that the Police Court of Lynn was a
court of record having common-law jurisdiction."
But it was held that the court did not have a clerk,
and therefore did not possess authority to naturalize.
To the same effect was the decision in State v. Whitte-
more, 50 N. H. 245, holding that the Police Court of
Nashua was a court of record having common-law jur-
isdiction, but not having a clerk did not have jurisdic-
tion over applications for naturalization. See also
Wheaton v. Fellows, 23 Wend. 375; Hutkoff v. Demo-
rest, 103 N. Y. 386.

But does the Municipal Court of Biddeford have "common-law jurisdiction "to the extent contemplated by the Federal statute? With respect to this inquiry it is proper to remark that we have no National common law in the United States distinct from that adopted by the several States, each for itself, except so far as the history of the English common law may be involved in the interpretation of the Federal Constitution. The judicial decisions, the usages and customs of the respective States determine to what extent the common law has been introduced. What is common law in one State may not be so considered in another. Wheaton v. Peters, 8 Pet. 658; Smith v. Alabama, 124 U. S. 478. It must also be remembered that we have no State courts in this country deriving their existence from the common law. They are all established either by the provisions of the organic law or by legislative enactment. Their jurisdiction is not uniform. Some of them have only a special jurisdiction limited as to amounts or subjects in controversy. Of this character are the Superior Courts of this State; yet it would not be questioned that they have .. common-law" jurisdiction. By suits at common law' in the Constitution," says Judge Story in Parsons v. Bedford, 3 Pet. 443," is meant not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined in contradistinction to those where equitable rights alone were recognized and equitable remedies administered."

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Courts of "common-law jurisdiction" are such as "exercise their powers according to the course of the common law. It was not meant that they should have all common-law jurisdiction over every class of subjects, including all civil and criminal matters. If 80, few courts could be found in this country having the requisite common-law jurisdiction." People, ex rel. Brackett, v. McGowan, 77 Ill. 644; 20 Am. Rep. 254. So also in the Matter of Martin Conner, 39 Cal. 98; 2 Am. Rep. 427, the court says: "The term 'common-law jurisdiction' is capable of no other meaning than jurisdiction to try and decide causes which were cogniz able by the courts of law under what is known as the common law of England. The act does not require that courts shall have all the common-law jurisdiction which pertains to all classes of actions It is enough if it has common-law jurisdiction."" Again in U. S. v. Power, 14 Blatchf. 223, the court says: "The statute of the United States does not require of courts, authorized to entertain applications for naturalization, that they shall have all the jurisdiction possessed by any court of law. If the court may exercise any part of that jurisdiction, it is within the language of the statute and its meaning as well." To the same effect is Morgan v. Dudley, 18 B. Monr.; 68 Am. Dec. 735. See also People v. Pease, 30 Barb. 588; Ex parte Burkhart, 16 Tex. 470, and Mills v. McCabe, 44 III. 194.

2. It is admitted that the Municipal Court of Biddeford had a seal, and assuming without deciding that it was a court of record having common-law jurisdiction within the meaning of the act of Congress, did it also have a clerk within the meaning of the Federal statute? The language of this statute seems to imply that there may be courts of record having common-law jurisdiction and a seal without a clerk, and that such courts are not embraced by the terms of the act. And this is the construction which it has received from eminent judicial authority. The court must have a clerk distinct from the judge; not necessarily an officer denominated clerk, but a permanent "recording officer charged with the duty of keeping a true record of its doings and afterward of authenticating them." Shaw, C. J., in Ex parte Gladhill, Ex parte Craig and State v. Whittemore, supra. The court contemplated by the act of Congress has an organized existence. It is impersonal.

The judge is one of the constituent parts of the organization; the clerk is another and a separate and an independent element. The essential function of the clerk is to make and keep the records, and give them legal verification by his attestation and the use of the seal.

By those sections of the act establishing the Municipal Court of Biddeford above quoted, the responsible duty of making and keeping the records of the court is imposed upon the judge and not upon the recorder. There is no duty of making and keeping the records imposed upon the recorder by law. He is to keep the records of the court only when requested so to do by the judge. Furthermore the recorder of this court cannot authenticate by his attestation any copies of records "made and kept "by the judge or kept by himself at the request of the judge. Only such copies of the records as are “ duly certified by the judge shall be legal evidence in all courts." The authority to appoint a recorder was conferred upon the judge, not for the purpose of creating a fixed and permanent clerical office distinct and separate from that of the judge, but primarily to provide for the judge a substitute who should be empowered to act in his stead in the contingencies named in the act. "His signature as recorder is sufficient evidence of his right to act instead of the judge.' When thus acting in a judicial capacity, exercising the powers and performing the duties of the judge, the recorder is the court and must personally make, keep and authenticate the records of the court.

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