By an amendment of the Revised 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 *Page 241 the premises. Provision has been made for cases of vacancy in the office of surrogate. (2 R.S., 79, 550; id., 554.)
By section 49 (2 R.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 of 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 to 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 *Page 242 when there shall be no person capable of acting under the provisions of the title, of which the section was a part, the chancellor should issue a commission empowering some person to act in the premises — that is, in respect to the matter in which neither of the officers named could act, and not to perform the general duties of the office of surrogate. The amendment relates exclusively and in terms to the disqualifications and incapacities imposed by statute, and not to the vacancies which might occur under the general laws of the State. (1 R.S., 122, § 134.) The power of the chancellor was to issue a commission in a special case and for the performance of a special duty, and not to commission a public officer generally for the performance of all duties pertaining to a civil office. This would have been in direct conflict with the power conferred upon the Governor and Senate, and upon the Governor during the recess of the Senate to fill the vacancy in the office of surrogate temporarily. (1 R.S., 107, § 9; Id. 123, § 42.)
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 *Page 243 all acts conferring power upon this class of magistrates to appoint public officers, was necessarily annulled by the adoption of this provision as the paramount law of the State. (Const., art. 1, § 17.)
The term "office" has a very general signification, and is defined to be that function by virtue whereof a person has some 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 *Page 244 actually performed. Judge PLATT defines the legal meaning of the term "office" to be "an employment on behalf of the government in any statute or public trust, not merely transient, occasional, or incidental." (In re Attorneys, etc., 20 J.R., 492.) When "public" is the prefix of "officer," the definition is very apt, and clearly and with precision marks the limit of the constitutional prohibition.
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 perform 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 incapacity *Page 245 of the "public officers" having general jurisdiction. The commission does not supersede or displace the officers named. The Constitution was not intended to and does not deprive the Supreme Court of the power to commission an individual to act in the proof of a will, when all officers charged with that duty are disqualified and precluded from acting. The Supreme Court, therefore, had jurisdiction in the premises. This provision of the amendment of 1830 was left intact by the various revisions of the law since the adoption of the Constitution of 1846. The revisions were chiefly to confirm the statute to the reorganization of the judicial system, and were necessary by reason of the changes made. But the changes did not make necessary any reference to this independent enactment, providing for the incapacity of all the officers named; and as the power originally vested in the chancellor had been transferred to the Supreme Court, no new enactment or change of verbiage was necessary to perfect the legislation. In such a case, the revision does not imply an intent to repeal such parts of the old act as are special and independent of the parts revised, and which are equally applicable to and necessary under the new as under the older statute. This was decided in The Matter ofKernan (62 N.Y., 457); reaffirmed in People ex rel. Ross v.Brooklyn, not yet reported.
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.