The question raised in this case turns upon the validity of the act of the legislature giving to the recorder of Troy the power of conducting proceedings supplementary to judgment of the Supreme Court.
By the eighth section of the fourteenth article of the constitution "the offices of Supreme Court commissioner, master in Chancery, c. (except as therein otherwise provided), are abolished."
The direct effect of this provision — and probably its leading if not its only object — was to dismiss a host of existing incumbents and make room for other aspirants. While abolishing the existing office, and with it, of course, the existing officer, it carefully abstained from any prohibition against its immediate resuscitation under another, if not a similar, name. It not only abstained from prohibiting such an act, but, in another section (art. 6, § 5), the convention declared expressly that "the legislature should have the same powers (generally, without specifying any particular court or officer) to alter and regulate the jurisdiction and proceedings in law and equity as they had theretofore possessed." What, then, is there to prevent the legislature *Page 334 from "altering the jurisdiction" of the recorder of Troy so as to include in his powers authority to conduct "supplementary proceedings?" He need not, for that purpose, be made even a commissioner. Supplementary proceedings, so called, were no part of the functions of a commissioner at the date of the constitution. They did not then exist, but were the subsequent offspring of the new Code. To confide the conduct of them, therefore, to the recorder was not in effect to revive and to confer upon him to some extent the "abolished" office of Supreme Court commissioner.
But even if it were so, the objection would have little force; it certainly would not be insuperable. The objection assumes that the aim of the constitution was to get rid of the existing office as well as of the existing incumbents. And is not the office, in the sense of the objection, effectually got rid of by transferring its functions (not abolishing them) to another officer, the continuance of whose office was both recognized and provided for? In that view I see nothing, either in the letter or in the spirit of the constitution, to prevent the legislature from confiding the conduct of the newly instituted proceedings even to the sheriff. Indeed, if the incumbent of that office were always, or usually, what he ought to be, there would seem to be a peculiar fitness in such a legislative regulation of the sheriff's jurisdiction. It would be an appropriate accompaniment to his power and duty of giving effect to the process of the court and compelling the debtor to disclose and apply all his property to satisfy the judgment against him.
This interpretation, it is said, involves the constitution in inconsistency. And was not the constitution the work of inconsistent minds? Restriction and latitudinarianism were its conflicting parents. It was the offspring not of love but of hostility. Hence we find that while abolishing the office of chancellor it has created thirty-two chancellors with the same powers under another name; that while abolishing the office of master in Chancery it has silently permitted *Page 335 the creation of an indefinite number of referees, who are masters both in Chancery and at law; and that while denying to the new judges "any power of appointment to public office," even to the office of clerk or crier to their own courts, it has quietly, in the matter of references, allowed them an indefinite extent of appointing patronage. It is the duty of the court, say the counsel, to put upon the constitution that construction which "harmonizes and gives effect to all its parts." The general rule is as stated; its practical application in the present instance is impossible. To give effect to all the parts of the constitution results necessarily in discord. Some parts — certainly their authors — had totally opposite views from others; and by adopting both it has become impracticable fully to carry out either. No court can reconcile that which in its nature and intent is irreconcilable.
Again, it is urged that "the abolition clause would be utterly useless if the legislature could immediately restore their (the commissioners') functions by indirection." I have already shown that this point, in one of its aspects, is not well taken. Enlarging the powers of a retained office leaves the reduction of the number of officers to have its full operation; and if "one object of the constitution was to limit the number of outside local officers having power to delay proceedings in the courts," that object clearly is not defeated by a continuance of functions admitted to be indispensable, and a transfer of them to an officer whose office is not abollished. Nor is the point referred to well taken in its other aspect. This court, whatever may be my own views, has in effect decided that the motives of the legislature are not to be inquired into, and that evasion is not to be presumed. I do not, however, mean to say that giving to the recorder of Troy the powers of a Supreme Court judge at chambers was an evasion of the constitution either in fact or in intent. The act was in every respect the same as giving the like powers to the judges of another local court in the city of *Page 336 New-York. The validity of that proceeding was established in the case of Renard v. Hargous (3 Kern., 259.)
The judgment, therefore, of the Supreme Court sustaining the demurrer of the defendants should be reversed.