I concur in the reversal of the order appealed from in this proceeding on the ground that the duty imposed upon the justices of the Supreme Court by the statute in question is not a judicial one.
The justice is required to act, not in any judicial proceeding, but as a mere ministerial officer in aid of the Attorney-General, and in a matter that is neither an action nor a special proceeding, and in which both the provisions of the statute and the history of its enactment indicate an intent on the part of the Legislature to deprive him of all judicial power, and of any information from which he might exercise judicial discretion.
Such a duty, in the performance of which the justice is not given any judicial power, is not one that the Legislature may lawfully impose upon him, and his act under it is not to be sustained.
So also the referee is not appointed in a judicial proceeding, and is not, arid cannot, act as a judicial officer.
Imprisonment by such a tribunal, for not appearing or answering before it, deprives a witness of his liberty without due process of law, and a witness so ordered to appear and answer may at once raise the question whether such an order ought to be sustained.
Merwin and Edwards, JJ., dissented from result.
In these cases the court decides the following propositions :
First. That an appeal lies from the order made and entered in Albany county July 3, 1900, refusing to vacate the order made on the 28th day of May, 1900, appointing the referee and directing the appellant to appear before him.
Second. That the order so appealed from is reversed, with ten dollars costs and disbursements, and motion to set aside order appointing referee is granted, with ten dollars costs.
Third. The order made at Special Term and entered July 3,, 1900, setting aside the writs of prohibition, are and each of them is reversed, with ten dollars costs and disbursements. This decision *260Is upon the ground that the court erred in holding that the Special Term had no power to grant the writs and the merits were not involved. (Code, § 2097.) All concurred.
Fow/rth. The application to this court for writs of prohibition in •eacl} of the cases is denied, with ten dollars costs and disbursements in each case. All concurred.
Orders shall be entered in each case in accordance with this memorandum.