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 *Page 246 as surrogate when the surrogate was incapable of acting, or the office was vacant, and if both the surrogate and first judge were incapable of acting, or the offices of both were vacant, the district attorney of the county, if not incapacitated, was authorized to act as surrogate. (Section 54.) By chapter 320 of the Laws of 1830, section 54 was amended by adding thereto this clause: "When there shall be no person capable of acting under the provisions of this title, the chancellor, upon petition, shall issue a commission to some suitable person, empowering him to act as surrogate in the premises." The testator, Charles Hathaway, a resident of Delaware county, died in January, 1876, possessed of real and personal property of the value of $70,000. He left a will disposing of his estate, and appointing three executors, one of whom was the district attorney of Delaware county, and another was related by marriage to the county judge. There was no separate officer elected to perform the duties of surrogate in Delaware county, nor any local officers elected to discharge the duties of county judge and surrogate in case of their inability or a vacancy. In February, 1876, Mr. Justice MURRAY, sitting at Special Term, upon a petition showing that the county judge and district attorney were disqualified to act as surrogate in the probate of the will of Hathaway, made an order appointing Harvey F. Davidson, Esq., to act as surrogate in the premises so long as the disability of the surrogate should continue, and a commission was thereupon issued to the appointee following the terms of the order.
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 *Page 247 of the "general jurisdiction in law and equity" granted by the Constitution to the new Supreme Court created by that instrument; or, second, that it was transferred to and vested in the justices of that court by force of the sixteenth section of the judiciary act of 1847 (Laws of 1847, chap. 280), which conferred upon the new Supreme Court and the justices thereof the same powers and jurisdiction then possessed and exercised by the Court of Chancery, and the existing Supreme Court, and by the chancellor and the justices thereof, "so far," the section proceeds, "as the power and jurisdiction of said courts and officers shall be consistent with the Constitution and the provisions of this act."
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 *Page 248 the special cases provided for by statute in the surrogate and the Surrogate's Court. That court exercised a distinct and independent statutory jurisdiction, subject only to the appellate jurisdiction established by law of the Supreme Court and Court of Chancery. The power of appointment given to the chancellor by the act of 1830, was a function wholly independent of his ordinary jurisdiction. It was vested in the chancellor as a convenient and suitable depository of the power, and not as an incident to equity jurisdiction. When the appointment was made the power terminated. The appointee was surrogate pro hac vice, and he was not subordinate to, or amenable to the jurisdiction of the chancellor, except that his orders and decrees were subject to review by the chancellor upon appeal in the same way as were the orders and decrees of the regular incumbent. The power of appointment given to the chancellor by the act of 1830, did not pass to the present Supreme Court as part of the jurisdiction in law and equity conferred by the Constitution.
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. This 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 *Page 249 of the Constitution declares what, without such declaration, would be the necessary consequence, that all acts of the Legislature "as are repugnant to this Constitution are hereby abrogated;" and the statute of 1847 recognizes this principle and the paramount authority of the organic law. It will be observed that the act of 1830 confers the power of appointment upon the chancellor, and not upon the Court of Chancery; and the power was, by the judiciary act of 1847 (if the statute was not abrogated), devolved upon the justices of the Supreme Court, and not upon the court of which they were members. The order appointing the acting surrogate, in the case now under review, purports to have been made by the court at Special Term; but it was good as an appointment by the justice holding the term, if the power of appointment under the act of 1830 was vested in that officer. Section 8 of article 6 of the Constitution expressly prohibits judges of the Court of Appeals or justices of the Supreme Court from exercising any power of appointment to public office. If the acting surrogate, whose appointment was contemplated by the act of 1830, was a public officer, holding on his appointment a public office, it is plain that, under the Constitution of 1846, he could not be appointed by a justice of the Supreme Court. This clause was inserted in the Constitution to check and prevent the evil of what was called judicial patronage. It was not deemed consistent with the judicial office to invest the judges of the higher courts with the power to make appointments to office, which power, prior to the Constitution of 1846, in certain cases, they possessed and exercised. Many of these offices were valuable, and especially the office of the clerk of the courts, the fees and emoluments of which were large; and, however discreetly the power of appointment was exercised, judges were exposed to have their motives questioned, and in consequence their influence impaired. When the report of the committee on the judiciary was under discussion in the Constitutional Convention of 1846, Mr. Patterson stated that the principal object of the committee *Page 250 in inserting this clause was to prohibit judges from appointing their clerks. (Debates [Atlas ed.], p. 779.) It is doubtless true, that to confer upon a justice of the Supreme Court power to appoint an acting surrogate in the contingency contemplated by the act of 1830, would not be within the evil at which this prohibition in the Constitution was aimed. It is a power which, from the nature of things, would be seldom exercised; and if any compensation is attached to the place of acting surrogate, it is not sufficient to make the position one to be sought for; nor would its bestowal be likely to subject the judge to suspicion or criticism. But this consideration is entitled to little, if any, weight, in limiting the application of a constitutional provision in a case which is within its plain and explicit language.
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 *Page 251 of what would have been done, if attention had been called to the particular case.
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 intestacy; 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 creditors, 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 function *Page 252 which he exercises is a public one. It is the duty of the government to provide for the administration of justice, and create courts and agencies to that end, and the appointee, under the act of 1830, acts both as a court and officer, and we cannot doubt that he is a public officer; and that being such, the power of appointing him could not, under the Constitution of 1846, be vested in a justice of the Supreme Court, and that in consequence the statute of 1830 was abrogated thereby. The omission in the amended judiciary article of 1869 of the prohibition contained in the Constitution of 1846, did not operate to revive the statute of 1830. That statute conferred the power of appointment upon the chancellor. The sixteenth section of the judiciary act of 1847 did not confer it upon the justices of the Supreme Court, because it transferred to them only such powers of the chancellor as were consistent with the Constitution, and this power was not vested in the justices, because, as we have held, it was inconsistent with that instrument. There was, therefore, no legislative intent to transfer the power manifested by the act of 1847, and there has been no further legislation on the subject. This is a sufficient answer to the suggestion of counsel based upon the change made by the amended judiciary article of 1869, and it is unnecessary to consider the other answers which have been urged.
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 *Page 253 Constitution. They were said to be officers of the court. Receivers were its ministerial agents and referees appointed to hear and decide, exercised by delegation judicial powers, in the particular case, subject to the control of the court appointing them. The power of the courts to act through official agencies of their own appointment in actions and proceedings pending before them was incident to their jurisdiction and passed to the new Supreme Court as a part of the general jurisdiction of law and equity, conferred by section 3, article 6 of the Constitution, and was made also the subject of legislative control by section 5 of the same article, which provides that "the Legislature shall have the same powers to alter and regulate the jurisdiction and proceedings in law and equity which they have heretofore possessed." Assuming, therefore, that receivers and referees are public officers (a point which we do not determine), the power of appointment, as it had, theretofore existed, was continued in the new Supreme Court by the clauses in the Constitution of 1846 to which we have referred.
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 or 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 *Page 254 that no attempt has been made to do it. The validity of such legislation would probably depend upon the question whether the appointee, under such a law, is a county officer within section 2, article 10 of the Constitution.
FOLGER, RAPALLO and EARL, JJ., concur with ALLEN, J., for affirmance.
CHURCH, Ch. J., ANDREWS and MILLER, JJ., dissent.
Order affirmed.