At the general election in 1929, Thomas F. Cosgrove was elected County Judge and Surrogate of Richmond county, for a term of fourteen years. (N.Y. State Const. art VI, § 11.) From the inception of our judicial system the office of County Judge and Surrogate in Richmond county has been filled by one judge performing the duties of County Judge and Surrogate. Shortly after Cosgrove took office the Board of Aldermen of New York city determined to take from him all powers of Surrogate, and thereupon on the 9th day of June, 1931, passed a resolution creating the office of Surrogate and providing for the election of a Surrogate to fill the office at the coming election. The resolution says that the office of the Surrogate of the county of Richmond shall be a separate office and that there shall be elected at the general election in 1931 a separate officer as Surrogate in and for the county of Richmond for the term of six years. Nothing is said about his compensation, *Page 16 and I take it that the Board of Aldermen is not competent to fix his compensation. No act of the Legislature has created the office of Surrogate of Richmond county, nor provided for an election to such office; consequently, there is no act of the Legislature fixing compensation for any Surrogate of Richmond county. Strange indeed is it to find a Board of Aldermen claiming the power to create a State office, part of the judicial system of the State, without any power to provide compensation.
Section 231-d of the County Law, as added by Laws of 1926, chapter 815, provides that the compensation of the County Judge of Richmond county will be the same as that of the Judge of General Sessions of the city of New York, but no compensation is made for any Surrogate. How much is this new Surrogate to be paid? If the matter rests entirely in the discretion of the Legislature, it must be that the separation or creation of the office also rests solely with the Legislature. So reads the judiciary article of the Constitution of this State, as amended in 1925. By section 12 of article VI the Legislature may, onapplication of the Board of Supervisors in any county having a County Court, provide for the election of a Special County Judge or Special Surrogate not to exceed two in any county. Any such Special County Judge or Surrogate shall be chosen at a general election thereafter to be held.
Section 13 of the same article provides for the continuance of the existing Surrogates' Courts and says: "The Legislature may provide for the election of an additional surrogate in any county having a population of more than one million." Right here let us ask whether the Legislature could delegate to the Board of Aldermen of the city of New York this entire power, that is, to provide for the election of an additional Surrogate.
This section further prescribes: "The county judge shall be and serve as surrogate of his county, except where a separate surrogate has been or shall be elected. In any county having a population exceeding forty thousand, *Page 17 wherein there is now no separate surrogate, the Legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be six years. When the surrogate shall be elected as a separate officer, his compensation shall be established by law, and shall be payable out of the county treasury."
Note that all the references to the Legislature in these sections are the same. The Legislature shall provide for the election and the Legislature shall fix the compensation. The two things are linked together. It is as necessary for the Legislature to do the one as the other. We are dealing here with a State judicial office. (Matter of Prendergast v. Cohalan,101 Misc. Rep. 712; affd., 226 N.Y. 636.)
That the Legislature alone had the power to create the office of Surrogate or to separate it from the County Judgeship is evidenced by other provisions of the Constitution. By section 15 of article VI the Legislature may in its discretion authorize the election of one or more additional justices of the City Court in any county within the city of New York. They shall receive the compensation to be fixed by law. No Board of Aldermen here to deal with this increase of city judges and additional burdens upon the taxpayers.
Again referring to section 15, we find that the Legislature may at any time provide that the duties of County Judge and Surrogate in any county be discharged by the same person. The corollary of this must also be true — that the Legislature may provide that the duties of the County Judge and Surrogate be discharged by different persons, not the same person. That the duties and powers of this Surrogate's Court are within the handling solely of the Legislature is emphasized by the provision that the Legislature may confer upon the Supreme Court in any county having a population exceeding 400,000 the powers and jurisdiction of surrogates.
Section 14 of article VI gives to the Legislature the *Page 18 discretion to authorize the election of one or more additional judges of the Court of General Sessions.
The phraseology is the same in sections 12, 13, 14 and 15. "The Legislature may provide for the election" or "authorize the election" of Special County Judge, of Special Surrogate, of an additional Surrogate, of a separate Surrogate, of an additional General Sessions Judge, of an additional City Court Judge.
These powers cannot be delegated and passed over by the Legislature to the Board of Aldermen of the city of New York; they rest entirely with the good judgment and the discretion of the Legislature. The separation of the duties of the Surrogate from those of County Judge is the creation of a new office. The word "separate" may sound harmless, but it is here synonymous with "create." The salary of the County Judge and all the expenses are not cut in half; the expenses are more than doubled. The County Judge cannot receive less pay, and no power can reduce his salary during his term of office. The creation of a separate Surrogate means an additional salary, additional clerks, staff and office, so that the action of the Board of Aldermen by its resolution was the same as creating a separate and distinct judicial office. No logomachy can hide the facts.
So far as section 231 of the County Law, being section 221 of the original County Law of 1892, attempts to vest the Board of Aldermen, successor to the Board of Supervisors, with the power to create this office, it is unconstitutional. The Legislature has no power to delegate this authority, especially since the revision of the Judiciary Article in 1925, which is to be taken as complete and self-sufficient when dealing with the courts. (Matter of Adler v. Voorhis, 254 N.Y. 375.) This section says that the Board of Supervisors of any county, except Kings, having a population exceeding 40,000, may by a resolution at a meeting thereof determine that the office of Surrogate therein shall be a separate office and provide for the election of such officer therein. *Page 19
So far as any counties of the State have acted under this County Law, the office is protected by those provisions of our present Constitution which continue existing Surrogates "now" in office. But many, if not most, of the counties of the State have been doubtful of the constitutionality of this law, and have not relied upon it. Thus, Suffolk county, by chapter 330 of the Laws of 1879, procured a separate Surrogate. The act is entitled, "An Act to provide for the election of a surrogate, separate from the county judge of the county of Suffolk, and to fix the salary of said surrogate, and also the salary of the county judge of said county hereafter to be elected." For Steuben county, see chapter 309 of the Laws of 1883; Cattaraugus, chapter 236 of the Laws of 1857; Clinton, chapter 354 of the Laws of 1881; Essex, chapter 461 of the Laws of 1857; repealed, chapter 4 of the Laws of 1860; Otsego and Saratoga, chapter 779 of the Laws of 1871; Rensselaer, chapter 888 of the Laws of 1872; St. Lawrence, chapter 244 of the Laws of 1847. Time does not permit a completion of the list. The fact that so many counties have sought special legislation indicates that the validity of the County Law was seriously doubted.
Whatever doubts, however, there may have been about the phraseology of previous Constitutions and of the County Law, there can be no doubt since the adoption of the revised Judiciary Article of 1925, which gave to the Legislature alone power and the discretion to separate or create the office of Surrogate in any county. That these powers cannot be delegated see Cooley, Constitutional Limitations (7th ed.), p. 163, and cases; Peopleex rel. Unger v. Kennedy (207 N.Y. 533); Stanton v. Boardof Supervisors (191 N.Y. 428); Village of Saratoga Springs v.Saratoga Gas, E.L. P. Co. (191 N.Y. 123).
There is a marked distinction between a completed law to be adopted or not according to the vote of a Board of Supervisors or the people of the county and the making of that law by the Board. Creating a Surrogate's *Page 20 Court with term and salary affixed to be approved or adopted by local authority is different from passing on to the local authority the discretion and power to create the office, fix time of election and leave the compensation to be fixed after election. Whoever heard of an election to an office without a salary, compensation to be fixed after election — dependent, perhaps, upon the candidate elected? Such methods strike at the roots of democratic government. What kind of men will run for Surrogate of Richmond county next fall, where no compensation is attached to the office; or the hope of any, and the amount is dependent upon the will of next year's Legislature? The Constitution contemplates, as the Suffolk county act provides, that the office and salary shall be established by the Legislature previous to election.
The order appealed from should be affirmed.
POUND, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur with CARDOZO, Ch. J.; CRANE, J., dissents in opinion.
Order reversed, etc.