In re Proving the Alleged Last Will & Testament of Hathaway

By an amendment of the Bevised Statute, enacted in 1830 (S. L., Chap. 320, § 20), power was conferred upon the chancellor, when neither the surrogate, first judge, or district attorney of the county could act, by reason of the disqualifications imposed by statute, in respect to any will, or the estate of any intestate, to issue a commission to some suitable person empowering him to act as surrogate in

By section 49 (2 E. S., supra), the power to act in individual cases of the incapacity of the surrogate was devolved upon the first judge of the county, and by a separate enactment in section 50, general power to act as surrogate, during a vacancy in the latter office, was conferred upon the same official. Upon the happening of a vacancy in the office of surrogate, the first judge of the county became the acting surrogate, with all the powers incident to that office, pursuant to the special and independent enactment in section 50, while in the case provided for by section 49, he had the powers of a surrogate over the particular estate in respect to which the surrogate was prohibited from, acting; and in making provision by section 54 for the incapacity of both surrogate and first judge, and for a vacancy in both offices, the same distinction is observed, and the two cases, disqualification and vacancy, are provided for by conferring the same powers upon the district attorney as were given by the preceding sections to the first judge, the sections being applied distributively to the case for which each was enacted.

The added clause, by the amendment of 1830, did not undertake to provide for any vacancy which might occur in the offices designated in succession as the depositaries oi the powers of the surrogate, but merely to provide for the incapacity to act of the officers named in a particular case. Other statutes made provision for the filling of vacancies in the several offices, and it was not supposed that the three could or would remain vacant for any length of time, or so as to inconvenience- the public by delay, and it was not deemed necessary to provide for a general vacancy. There is no evidence, and it cannot be presumed that the Legislature intended to confer upon the chancellor the power tq fill a vacancy by-the appointment of a suitable person to the office. The language of the added clause of the section will not permit such an interpretation. It declares that

By the Constitution of 1846, the Court of Chancery and the office of Chancellor were abolished and the Supreme Court substituted, with general jurisdiction in law and equity; and by the judiciary act of 1847 (chap. 280, § 16), the Supreme Court, organized under that Constitution, was invested with the same powers and jurisdiction as were then possessed and exercised by the Court of Chancery, and the justices of the court, with the same powers and jurisdiction as were then possessed and exercised by the chancellor, “ so far as consistent with the Constitution and provisions of this act.”

It is not denied that, unless inhibited by the Constitution, the power and jurisdiction conferred upon the chancellor by the amendment of 1830 to section 54 of the Revised Statutes were, by the act of 1847, transferred to and vested in the Supreme Court and the justices thereof. By the Constitution of 1846 (art. 6, § 8), the judges of the Court of Appeals and justices of the Supreme Court were prohibited from exercising “ any power of appointment to public office;” and

The term “ office ” has a very general signification, and is . to be that function by virtue whereof a person has employment in the affairs of another; and it may be public, or private, or quasi public, as exercised under public authority, but yet affecting only the affairs of particular individuals. The presidency of a bank is spoken of as an office, and a trustee of a private trust is, in ordinary parlance, said to hold the office of trustee; and the term office is applied to an executor or guardian, etc. A referee, for the trial and decision of actions, is an officer exercising judicial powers under public authority. So, receivers appointed by the courts, and commissioners for the appraisal of damages for lands taken for public use, are officers, and strictly and technically exercise the functions of an office. But they are not “ public officers,” within the inhibition of the Constitution. If they were, they could not have derived authority from the Supreme Court, or any justice thereof, while article 6, as adopted in 1846, remained in force. While the duties of the class of officers last named, referees, etc., were of a public nature, and in a sense concerned the public and the administration of justice, and were exercised under authority derived from the State directly, and not from individuals, still they related especially to particular individuals and a specific litigation; and their authority is restricted to specific matters, and no general powers are conferred upon them authorizing to act in respect to all like cases, or in any case or matter other than specified and named in their appointment. They owed no duty to the public, and could perform no service for the public. The trust they exercise and the duties they perform are “ transient and occasional.” They are not called upon to take the constitutional oath of office, and are not entitled to the emoluments of the office, except such as grow out” of and pertain to the duties

It then deprives the courts of all political patronage, and of the power to appoint to “public office,” but leaves the Legislature untrammelled and at liberty to invest the courts with the power to designate individuals to perform transient, occasional or incidental duties, such as are ordinarily performed by public officers to meet special exigencies. “ Public office,” as used in the Constitution, has respect to a permanent trust to be exercised in behalf of the government, or of all citizens who may need the intervention of a public functionary or officer, and in all matters within the range of the duties pertaining to the character of the trust. It means a right to exercise generally, and in all proper cases, the functions of a public trust or employment, and to receive the fees and emoluments belonging to it, and to hold the place and j)erform the duty for the term and by the tenure prescribed by law. The authority to delegate power in various forms, and for almost every variety of purposes, is committed to courts, and if the designating of individuals and commissioning them for special purposes, and to act on special occasions, was an appointment to a “public office” within the prohibition of the Constitution, the judiciary would be greatly embarrassed in the administration of justice, and suitors deprived of very important remedies. Commissions to examine witnesses, orders of reference, commissions of appraisal, appointment of receivers, the appointment of elisors when necessary, or the striking of a jury by persons appointed by the court would be violative of the Constitution. All these appointments are as much an appointment to a “public office ” as is the appointment of a commissioner to act as a surrogate in a particular case, made necessary by the inca

The appellant, by proceeding with the hearing before the commissioner and awaiting the result of his action, waived the objection to the jurisdiction of the court to appoint without notice to those interested. The appellant cannot take her chances of the contest before the commissioner, and, failing there, fall back upon the technical objection of a want of notice of the application for his appointment.

The order must be affirmed.

Prior to the Constitution of 1846, a surrogate was appointed for each county. (1 Rev, Stat., 97.) By the Revised Statutes (2 Rev. Stat., 79, §§ 49, 50), the first judge of the county was authorized to act

The question presented upon this appeal is whether the power given to the chancellor by the act of 1830 has devolved upon and is vested in the Supreme Court or the justices thereof. The proposition that the power to appoint an acting surrogate which was vested in the chancellor by the act of 1830, is now possessed by the Supreme Court or a justice of that court, if it can be maintained at all, must rest upon one of two grounds; first, That this power was, at the time the Constitution of 1846 was adopted, a part

The statute of 1830 has not been re-enacted, and no law has been passed in terms reviving or continuing it, or vesting in any court, body or officer, the power to appoint'a special surrogate in the event contemplated by that statute, and this power is not now vested in any court or officer, unless it passed to the new Supreme Court under the general grant of jurisdiction in law and equity, or has been preserved and devolved upon the justices of the court by the section of the judiciary act to which we have referred.

That the power to appoint an acting surrogate in case of the disability of the incumbent or the other officers, empowered to act in his stead, was not included in the general grant to the Supreme Court of jurisdiction in law and equity, does not, we think, admit of serious question. The probate of wills was not, at the time of the adoption of the Constitution of 1846, a part of the general jurisdiction of the Supreme Court, or the Court of Chancery. The Court of Chancery was authorized by statute to take proof of lost or destroyed wills, and of wills where the witnesses resided out of the State (2 R. S., 67, Laws of 1830, chap. 320), and this as a part of its existing jurisdiction was vested, on the abolition of that court, in the new Supreme Court, under- the clause of the Constitution to which we have referred. But the jurisdiction to take proof of wills, and to control the administration of the estates of decedents, was exclusively vested, except in

We come, therefore, to the consideration of the other ground upon which it is claimed that the power to appoint an acting surrogate, given to the chancellor by the act of 1830, has been transferred to and now resides in the justices of the Supreme Court, viz.: that the sixteenth section of the judiciary act of 1847, by conferring upon the justices of the Supreme Court the powers theretofore possessed and exercised by the chancellor, continued the act of 1830 in force, modified only by substituting the justices of the Supreme Court as the appointing power in place of the chancellor. Tins section contains the important qualification already noticed; that only such powers possessed and exercised by the former courts and officers are vested in the new court and its justices as are consistent with the Constitution and the act. If the power of appointment conferred upon the chancellor by the act of 1830 could not be conferred upon or be exercised, by. a justice of the Supreme Court consistently with the Constitution of 1846, it needs no argument to show that the statute was abrogated by the Constitution. Section 17, article 1

If the appointee under the act of 1830 is a public officer, exercising a public office, it is no answer to the constitutional objection we are now considering, to say that the prohibition was not intended to apply to this case, or that the convention which proposed it did not have in view an appointment of this character. The language of the Constitution is plain and unambiguous; the prohibition is general and includes all public offices. To construe it according to its plain meaning, leads to no absurd or irrational result. Under such circumstances, to engraft an exception upon the general language of the provision, and to exclude a particular case from its operation, for the reason that it might properly have been excepted, or that to permit the power of appointment in the particular instance would not trench upon the general policy of the constitutional provision, would be introducing a most lax and dangerous doctrine of constitutional interpretation. Exceptions may be safely made to all general rules, but in the construction of a Constitution we must assume that the language used was carefully employed, and when a general rule is prescribed, and no exceptions are made either expressly or impliedly in other provisions and arrangements of the instrument, neither the Legislature, or judicial departments of the government can create them, upon any theory

We are, then, to inquire whether the power of appointment given to the chancellor by the act of 1830 was a power to appoint to public office; or, to state the same question in another form, was the appointee a public officer. It is impossible, we think, to give any other than an affirmative answer to this question. The power of appointment by the act of 1830 is given when there is no person capable of acting as surrogate under the provisions of the title of the Revised Statutes, relating to the granting letters testamentary and of administration, and the commission issued to the appointee empowers him “ to act as surrogate in the premises.” (2 Rev. Stat., 81, § 54, chap. 320, Laws of 1830, § 21.) He is invested, therefore, in the particular case, with all the powers of the surrogate; to take proof of wills, and make a decree establishing or rejecting them; to grant letters of administration in cases of intestacy7 to compel an accounting by executors or administrators, and to decide all questions arising thereon; to make a decree of distribution of the estate, and, as incident thereto, to pass upon the rights of creditor's, legatees, next of kin, or other persons interested; to make orders for the sale of real estate for the payment of debts and legacies; in short, he administers as the public and accredited agent of the law for the time being, and in the particular case judicial powers, in respect to persons and property, which, only one representing the sovereignty of the State, has any claim or right to exercise. There can be no proper definition of “ public office ” or “public officer,” which does not include such an agency or officer. He is not the less a public officer because his authority is confined to a single case, or to narrow limits, “ because it is the duty of his office, and the creation of that duty which makes him a public officer, and not the extent of his authority.” (Carth.,479.) It is an office, and not simply an employment. The appointee acts, not by the consent or will of parties, but without their consent and against their will. The func

It is said that the appointment by the justices of the Supreme Court of an acting surrogate in a special case, is analogous to the conceded power of the court to appoint a referee or receiver in actions or proceedings pending in that court; and that if such an appointment is not an appointment to a public office within the prohibition of the Constitution of 1846, the appointment of an acting surrogate by the court or a justice thereof, is not in conflict with that instrument. But the cases are not analogous, and are not governed by the same considerations. The power of courts of law and equity to appoint referees and receivers in actions pending before them was a part of their acknowledged authority and jurisdiction prior to and at the time of the adoption of the

These views lead to a reversal of the order below. We should have been glad if we could have reached a different conclusion. The statute of 1830 was a beneficial one, and provided for a failure of justice in the cases within its purview. There is no apparent impropriety in lodging the power of appointment of an acting surrogate in a particular case, when the surrogate is disabled of the office is vacant, in the justices of the Supreme Court.

We think there is no doubt that the Legislature may provide for the appointment of such an officer, to act temporarily in the event contemplated by the act of 1830, in counties where there are no local officers elected to perform the duties of county judge and surrogate under the provisions of the Constitution.

Whether the Legislature can now, since the removal of the restraint imposed by the Constitution of 1846, confer the power of appointment upon the justices of the Supreme Court, it is not necessary to decide. It is sufficient to say

Folger, Rapallo and Earl, JJ., concur with Allen, J., for affirmance.

Church, Ch. J., Andrews and Miller, JJ., dissent.

. Order affirmed.