delivered the following concurring opinion.
An action was brought under the. Code of Procedure on drafts in favor of respondent drawn by the President on and accepted by the Treasurer of the appellant. Judgment was entered by the Cleric of the Circuit Court under section 191 of the Code, against the appellant, for $432.00.
The part of said section which applies is as follows :
“ Judgment may be had, if the defendant fail to answer the complaint, as follows: 1. In any action arising on contract for the recovery of money only, the plaintiffs may file with the cleric proof of personal service of the summons and complaint on one or more of the defendants, or of the summons according to the provisions of section 81, and that no answer has been received. The cleric shall thereupon enter judgment for the amount mentioned in the summons against the defendant or defendants, or against one or more of several defendants in the eases provided for in section 87.”
It is contended for the appellant that this section of the Code is unconstitutional, because it provides for the performance of a judicial act, involving several judicial determinar tions, by one who is not a judicial officer, and the Constitution is appealed to wherein in Sec. 1, Article YI, it declares that “the judicial power of the Stale shall be vested in.a Supreme Court, Circuit Courts, County Courts, and Justices of the Peace.” In section eighteen of the same article, that “ no other courts than those herein specified shall be. organized in this State,” and in article three, that “ the powers of government of the State of Florida shall be divided into three departments, Legislative, Executive and Judicial;, and no person properly belonging to one of the departments shall exercise any functions appertaining to either of the others, *236except in those cases expressly provided for in this Constitution.” On the other side it is contended for the-respondent that such acts are not necessarily judicial, within the true meaning of those parts of the Constitution, and are lawfully directed by the statute in question to be performed by the -clerk.
In behalf of the appellant the case of “ The State ex rel., city of Rockford vs. Maynard,” 14 Ill., was cited as a leading -case. There, as here, the constitution vested the judicial power of the State in one Supreme Court, in Circuit Courts, in County Courts and in Justices of the Peace, and it also provided for the election of the latter for four years. The Governor, as directed by statute, commissioned Maynard, elected mayor of the city for a year, a justice of the peace for one year from -the date of his election as mayor. A suit was brought before him for a penalty for violation of a city ordinance requiring labor on streets or commutation in money, and judgment was rendered against defendant for penalty and costs. Maynard afterwards refused to issue execution, and the Supreme Court denied a petition for mandamus to compel him to do it, on the ground that he could not as mayor hold the office of justice of the peace, nor belong to any of tbe courts bolding the judicial power of the State. He was some other official than a judge or other officer of any of those courts. Next the case of Chandler vs. Nash, 5 Mich., 409, in which, under similar constitutional provision, a statute giving undisputed judicial powers to a notary public was held to he unconstitutional. Next, ex parte Kennedy, 6 Eng., (Ark.) 598. There the jurisdiction of all matters of equity was by the constitution vested in the Circuit Court, and an injunction had been ordered by a Master in Chancery and issued by tbe clerk. A statute authorizing it was held to bo unconstitutional. Next and most relied upon, the ease of Hall vs. Marks, 34 Ill., 358, where the constitutional provisions are substantially the same, the statute the same, except in not appearing in this *237report to authorize the clerk to enter judgment in vacation, but stating that judgment may be entered by him. The summons had fixed no time for answer, and there does not appear to have been any rule of court like ours from .which could be fairly intended the presence and order,,of the court. ,
In behalf of the respondent was cited the case of Walls vs. Morton, 10 Wis., 470, where this very point is decided in favor of the constitutionality of the act, with an able dissent - ing opinion by Justice Paine. For respondent was also cited the practice -in the United States District and Circuit Courts for the Northern District of Florida for many years. . ,
The precedents nearly or precisely in point are few,'and divided. The constitutionality of the practice does not appear to have been much questioned, though prevailing,in several States having similar constitutional provisions for many years. It prevails in England, where they are .quite as careful in such matters as any pleople can be to keep, the judicial department separate and independent. , There can be no reasonable doubt that clerks of courts are officers of courts, created and their appointment provided, for in, and some of their duties prescribed by, the Constitution itself, (see Art. VI, Sections 6,17, 19, Art. XIV, See. 6,) and that they properly belong to the judicial department; that the judicial power of the State is vested in the courts, and that the Legislature has no authority to pass a statute in conflict with the true meaning of the Constitution.
The section of the Code in question is not the, only one requiring the Clerk to enter judgments without the real presence and participation of the Judge. In cases of trials of facts by the courts, their decisions in writing may, contain only statements of the facts found, must be filed • with the clerks within a certain number of days after term, and then judgments upon the decisions are to be entered accordingly. See section 213. Who ascertains the amounts of thejpdgments ? The Judges may or may not, and if not, the clerks *238must, and they are intended as the judgments of the courts. In cases of judgments by confession, the Judges have nothing whatever to do with them. The examination of the papers in order to ascertain whether or not they come up to the requirements of the Code, in such cases made and provided, are made by the clerks, who thereupon enter up the judgments. Should a clerk discover that clearly the papers are not such as the statute requires him to enter up judgment upon, (and this would be scrutiny and -consideration of the contents,) what might he lawfully do ? Postpone his action until the papers should be corrected and then enter the judgment? It appears to be conceded that the statute authorizing the clerks of the courts thus to enter such judgments is constitutional, and they are judgments of the courts. It is entered up upon a direct confession, necessarily serutinized and considered by the clerk. The judgment in question in this case was also entered upon a confession, though indirect, yet a virtual confession, nil dioit. • If, in the one case, the proceeding was constitutional, and in the other not, the difference and the force of the reasoning for considering it so are not seen.
It is thought also that the thirty-seventh rule of the Circuit Courts, by providing that the courts are always open for such purposes, makes such judgments the acts of the courts.
True, arguments can be and have been made upon both sides of the question. Some tend to show the requirements of the Consitution to be a heavy and useless burthen upon the Judge, (who constitutes the court,) and others a reasonable mode of exercising his authority by one of his constitutional officers at a moment of his actual temporary absence, but constructive presence, a mere saving of time and trouble.
Such judgments may be said to be as much the acts of the courts as is the administering of oaths by clerks in recess to witnesses to testify before grand juries, the Judges being out of'the court room ; on the calling of the petit jury at midnight and receiving a sealed verdict, and the dispersing of *239the jury, in court ordered to be kept open for that purpose, and the adjourning of the court, the Judge being asleep.
The experience of ages has recognized such judgments a® being the acts of the courts, not universally, it is true, for-human laws wary as much as men, their authors, do, but. enough to prove that they may with satisfactory reason beheld to be no substantial departure from constitutional authority for the Legislature to authorize them.
The judgment of the Circuit Court should be affirmed.