DISSENTING OPINION OP
ME. JUSTICE EE AN CO SOTO.This case involves the construction of section 309 of the Civil Code as amended by the Act of March 8, 1906, p. 37 (Comp. see. 3379).
It reads as follows:
“A minor, whether male or female, becomes emancipated of *166right by marriage. Nevertheless, in order to alienate and mortgage any real property or to contract loans a minor emancipated by marriage shall require the consent oí his father, in default of his father that of his mother, and in the proper case, that of his tutor.”
It is true that the Spanish Civil Code, of which, with few modifications, the revised Civil Code of 1902 is a reproduction, did not contain such provisions; but the limitation contained therein for the alienation of real property or the contracting of loans under the requirements indicated was included in the general provision of section 307 of the Civil Code (Comp. sec. 3377), which is the equivalent of section 317 of the Spanish Civil Code.
Section 307 of the revised Civil Code, as amended by the Act of March 8, 1906 (p. 36), reads as follows:
“Emancipation capacitates the minor to govern his property and person as if he were of age; but until he attains his majority the said emancipated person cannot make any promise or contract any obligation exceeding in value the amount of his income for one year. Neither can he encumber or sell his real property, without the consent of his father, or in default thereof, that of his mother, and in the proper case, that of his tutor. Neither may he appear in a suit without the appearance of the said persons.”
Section 317 of the Spanish Civil Code reads as follows:
“Emancipation qualifies the minor to control his person and property, as if of age; but, until he attains his majority, the person emancipated can not borrow money nor encumber or sell real property without the consent of his or her father, and, in the absence of the latter, that of the mother, and, in the absence of both, without that of a guardian. Neither can he nor she appear in court without the attendance of said persons.”
The difference introduced by the new code is that a minor emancipated by marriage may appear before the district courts to represent his interests (section 310), and that minors emancipated by other causes (section 302) can not appear as litigants unless represented by the persons named in section 307, supra.
*167It is clear from the statutes cited that in case the intervention of a guardian should he necessary it must he understood that he is not a general guardian under section 237 et seq. of the Civil Code, hut a special guardian who must give or refuse his consent to particular acts or contracts, supplying in the former case the statutory lack of capacity of the minor, notwithstanding his emancipation by marriage, for the particular act for which such consent is expressly required.
The law does not specifically determine who shall be appointed as such special guardian, or by whom he must be appointed, for although section 76 of the Special Legal Proceedings Act of March 9, 1905 (section 1615 of the Compilation of 1911), provides that any guardian may be qualified by the court, without giving bond, to represent a minor or incapacitated person in all such cases where his intervention shall be necessary, this provision clearly refers to the appointment of an ordinary guardian, inasmuch as the same section prescribes also that the guardian shall fulfill the requirements of section 72 (Comp. sec. 1611), “as soon as he be under the necessity of taking charge of the administration and custody of the property of his ward.” So that in these rules governing special legal, proceedings sections 307 and 309, supra, regarding the appointment of special guardians, were overlooked and a similar omission was made in failing to enact any rule to this effect on that point, the situation being, therefore, the same as that presented by Manresa in his Commentaries on the Spanish Civil Code, volume 2, pages 698 and 699, who, with the usual logic of the reasoning contained in his valuable work, compares the special guardian under section 317 of the Spanish Civil Code (section 307 of the revised Civil Code) with the next friend under section 165 of the Spanish Civil Code, which is equivalent to section 230 of the revised Civil Code, and in the last section mentioned he finds the solution of *168the problem under the. rule of construction that what is provided in a statute or code for a particular case is applicable to all analogous cases when there is no provision to the contrary.
Section 230 provides as follows:
“AVhenever, in any matter, the father or mother have interests opposed to those of their unemaneipated children, the district court shall appoint for the latter a person to defend their interests, who shall represent them in or out of court.
“The district court, on petition of the father or mother, the minor himself, the- public attorney or any other person capable of appearing in a suit, shall appoint, as the person to defend the interests of the said unemancipated child, the relative who, in a proper case, would act as his tutor by effect of the law, and, in his default, to [sic] another relative or any other person.”
This section indicates that the district court is vested with authority to appoint the guardian and that the appointee must be the minor’s relative who, in a proper case, would be the lawful guardian, and if none, any other relative or a stranger.
In commenting on the Spanish Law of Civil Procedure, volume 6, pages 307 and 308, Manresa says that the appointment is understood to be “the act by which the judge confers upon the lawfully appointed guardian the necessary powers for representing the minor or incapacitated person in accordance with law. * * * This is equivalent to the power conferred upon every mandatary and is set out in a writing signed by the judge and the cleric and of which a certified copy is given to the guardian to show his representative capacity.”
However, it can not be said that there is any substantial difference in the proceeding. Now the order of the judge substitutes the apucl acta referred to in section 1867 of the Spanish Law of Civil Procedure.
And this order is what we must consider in determining *169■whether the powers conferred upon the guardian are in harmony with the law.
We hold that in this case they are not. The petition of the minor asking for the appointment of a guardian refers to none of the acts or contracts specified in section 309 of the Civil Code. On the contrary, in the petition the minor makes the essential allegation (No. 4) that she desires “that a guardian be appointed for her notwithstanding her emancipation, so that the said guardian may adjust her affairs and settle her pending claims, saving as much as possible of her possessions.” It is clear that the object of the petition of the minor, notwithstanding her emancipation by marriage, was that a guardian be appointed for acts of pure administration which she cle pore was empowered to perform. The district judge should not have ignored the law, but as he did so in making the order hereinafter inserted, he acted without jurisdiction. The order reads as follows:
“ * * * the court appoints Rafael Ferrer, a resident of this city, married, merchant and property owner, to represent the said minor, who is a widow without parents, grandparents, brothers or sisters of age who can represent her, and so that in accordance with the law he may complete her personality in all matters that the said minor can not attend to personally, in and out of court, with all other powers necessary under the law. The said guardian shall give security in the sum of $500 and take the oath prescribed by law, and when this shall have been done the court will take such further action as may be proper.”
It is perfectly clear that the order does not authorize any act or contract specified in section 309 of the Civil Code. It was necessary to specify in the order the contract which it authorized or to indicate it expressly in order that the guardian could give or refuse his consent. However, the only object of the order of the court was rather the appointment of a guardian or tutor to represent the minor in court, which was not necessary under section *170310 of the Civil Code. The best indication that it was the idea of the court to appoint an ordinary guardian empowered to perform only acts of administration is that the order required the guardian to give security in the sum of $500, which was also unnecessary if the intention was to empower the guardian to give his consent to the contract of purchase and sale, because, as Manresa says with sound logic (vol. 2, page 699), the guardian “is not called upon to manage any property or to receive the price of the sale, but only to give his consent to the act if he considers it of utility or necessity for the minor.”
And it can not be maintained that an order of a court in general terms includes special acts which the law prohibits unless certain requirements are fulfilled. If the theory of agency is applicable, as indicated by Manresa in whose view we concur, in good legal hermeneutics it can not be concluded that a specific thing is included in a general one on the principle that the less is included in the greater, for it is well known that a mandate in general terms includes no more than acts of administration. In order to compromise, alienate or mortgage property, or execute any other act of strict ownership express power is necessary. Section 1615 of the Civil Code.
Section 309 of the Civil Code, furthermore, is prohibitive and should be construed strictly. The broad- and liberal construction put upon it by the majority is, in my opinion, erroneous and the view taken by the court below seems to me correct and should have been sustained on appeal.