delivered the opinion of the court:
The constitutionality of the sixth and seventh sections of the act regulating the practice in the thirteenth judicial circuit is questioned by the assignment of errors upon this record. Those sections declare that when suit is brought upon a written instrument, only for the payment of money, a copy of the declaration may be served with the summons, and a notice to the defendant, that unless he shall appear and plead within twenty days, a judgment will be rendered against him for the amount that is due on the instrument. And if the defendant, after such service, shall fail to appear and plead within that time, judgment may be rendered against him in vacation. If he shall- appear and plead, he is required to file an affidavit of merits with his plea.
The second article of our constitution declares that the powers of the government shall be divided into three distinct departments, and each of them confided to a separate body of magistracy, to wit, those which are legislative to one; those which are executive to another; and those which are judicial to another. And the second section of the same article declares that, “Ho person or collection of persons, being of one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted, and all acts in contravention of this section shall be void.” The power to adjudge, determine and render a judgment is beyond all question a judicial act, and under this provision can only be done by judicial authority. ■ It belongs to that department, and if exercised by either of the other departments this provision declares the act void. The rendition of a judgment by default and the assessment of damages is manifestly judicial. Before a default is entered it must be judicially determined that a sufficient summons had issued and legal service has been had upon the defendant, and the assessment of damages belong to the judicial and not the ministerial department of the court. It must be done by a jury under the direction of the judge, or at least their finding must be passed upon and approved by the court. 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.
The constitution has conferred this power, as we have seen, upon the judicial department, and has only authorized the officers composing that department to exercise the power. That instrument has designated the judges and magistrates of the various courts it has created or authorized to be formed, as the officers authorized to exercise the judicial power of the State. They alone have the power to consider, determine and adjudge-of the sufficiency of process and its service, by which a party is brought into court, and in determining when he is properly before the court, and has failed to perform some legal duty or comply with some rule of court, and shall be adjudged to be in default. The court alone, through a proper ministerial officer, has the right to issue a writ of inquiry to assess damages on a judgment rendered on default. These all being judicial acts, they cannot be performed by a ministerial officer, as the constitution has confided the power alone to a judicial officer.
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 or jurisdiction to render a judgment, but only to enter it under the express or implied order of the judge, in the exercise of judicial power. The clerk, then, not belonging to the magistracy composing the judicial department, and the constitution neither having required nor permitted, but having prohibited, him from the exercise of such power, the general assembly cannot confer the power. The judgment of default rendered by him in vacation is, therefore, unauthorized and void. This provision of the practice act of the thirteenth circuit is repugnant to the constitution, and not only so, but is expressly prohibited.
This case is not similar to, nor does it depend upon the power of the clerk to record a judgment confessed in vacation. There it is done by express authority from the debtor, who enters his appearance and specifies the amount for which the judgment shall be entered, whilst under this act, the clerk is authorized to bring the party before him and to adjudge and determine the amount he owes the plaintiff, to render judgment, and award execution to enforce his sentence. But if the two cases depended upon the same principle and could not be distinguished, the judgment by default entered in vacation .could not be sustained, and the other would be overruled, but we think that there is a clear and broad distinction. If this judgment may be sustained, we are at a loss to determine what judicial power, might not be rightfully conferred upon the clerks of our courts by legislative enactment. If he may rightfully render a judgment by default, assess the damages and enter final judgment, and award execution, we cannot perceive why the power may not be conferred to determine the sufficiency of the pleadings, compel the formation of issues, empannel juries to try issues of every description, render judgments, and, in a word, perform all the duties of a judge of the court. If this law were sustained where could we say that the judicial acts of the clerk should end? The judgment of the court below must be reversed and the cause remanded.
Judgment reversed.