(concurring in result). I concur in the result. I am in accord with the view that disqualification by reason of a State of mind ought not to prevail, and that it must be assumed that Mr. Justice Scudder will approach the hearing with a mind open, receptive and fair. I am also in accord with the view that the task imposed upon the justice, pursuant to the legislative authority contained in the Public Officers Law, section 34, is a judicial task, and contemplates the conduct of this proceeding “ in a judicial manner ” and in the exercise of “ judicial power.”
On January 1,1928, the Governor designated Mr. Justice Scudder, “ as an Associate Justice of the Appellate Division of the Supreme Court in and for the Second Judicial Department.” When the Governor directed Mr. Justice Scudder to take evidence in this proceeding and to report the same to him with findings and conclusions, such authorization was expressly stated to be to “one *597of the justices of the Supreme Court in and for the Second Judicial District,” that district being within the department in and for which he was duly designated as an associate justice of the Appellate Division.
The Constitution (Art. 6, § 2) provides: “ No justice of the Appellate Division shall, within the department to which he may be designated to perform the duties of an appellate justice, exercise any of the powers of a justice of the Supreme Court, other than those of a justice out of court, and those pertaining to the Appellate Division, except that he may decide causes or proceedings theretofore submitted, or hear and decide motions submitted by consent of counsel.”
The present proceeding is not the exercise of the powers of a justice “ out of court,” nor does it pertain to the powers of the Appellate Division. There is no misunderstanding in the legal profession as to what is meant by a justice acting “ out of court.” •Such judicial work has always been understood to be of an ex parte character, and the words have been construed to mean the exercise of such powers as “ may be exercised by a justice at chambers.” (Owasco Lake Cemetery v. Teller, 110 App. Div. 450,452.) A reading of section 34 of the Public Officers Law does not seem to me to admit of any such claim as that the proceeding before the justice can in any wise be likened to chambers work or the exercise of powers out of court. Nor does the proceeding involve the decision of a cause “ submitted ” to the justice prior to his designation as an associate justice of the Appellate Division and which the constitutional provision above quoted would permit him to determine. Neither can the present proceeding be regarded as a motion which could be heard upon consent of counsel; for, even if the parties here consented to confer jurisdiction upon an associate justice of the Appellate Division, such consent would be ineffectual. (Owasco Lake Cemetery v. Teller, supra.)
Whether the reasons stated in People v. Hall (169 N. Y. 184, 194) are the only ones for inclusion in the Constitution of the inhibition, the fact nevertheless remains that by the plain language of the Constitution the designation of a justice of the Supreme Court to the Appellate Division “ at once suspends his power ” to perform the duties of a justice of the Supreme Court, “ and during the period for which he was so designated he can perform no judicial function except as specially authorized by the Constitution.” (Williamson v. Randolph, 111 App. Div. 539, 540.) (See, also, Owasco Lake Cemetery v. Teller, supra; Kennedy v. Smith, 202 App. Div. 249.) .It is not a strained argument to say that section 34 of the Public Officers Law authorizing the Governor to *598direct a justice of the Supreme Court to conduct the hearing does not mean , that an associate justice of the Appellate Division may be so empowered. I am now speaking of a proceeding contemplating the removal of an elective official and not of a matter in which the Governor may seek advice from someone whom he knows whether he be a judge or engaged in some other service, private or public.
Of course, my view to find support must be predicated upon the theory that the work assigned by the Governor to Mr. Justice Scudder is judicial, and is to proceed “ in a judicial manner ” involving the exercise of “ judicial power.” If this be not held, it seems to me that Mr. Justice Scudder would be disqualified under article 6, section 19, of the Constitution which prohibits justices of the Supreme Court from holding any other public office or trust. If the proceeding is to be regarded as executive in character, then I doubt the power of the Legislature to impose such a task upon a justice of the Supreme Court. And, applying the usual rule of validity of statute where there is doubt, I prefer to take the view that the proceeding is a judicial one. The proceeding here involved can hardly be likened to the examination of relics (People ex rel. Washington v. Nichols, 52 N. Y. 478) or the issuance of a riót call. (People ex rel. Welch v. Bard, 209 N. Y. 304.) There is here required all the solemnity of a trial presided over by a justice of the Supreme Court who is to give notice of the hearing to the official accused and to report to the Governor the findings and conclusions of law reached by the justice. The mere fact that there is no power of review does not rob the proceeding of its judicial nature. As was said by Judge Willard Bartlett in People ex rel. Welch v. Bard (supra, 309): “ As an objection to the view that Judge Brown acted judicially in deteimining that a riot existed in Buffalo, it is suggested that there is no provision for reviewing such determination by appeal; but it may be observed that a right of review by appeal is not an essential element of due process of law — although a contrary assumption is often intimated in the discussion of legal questions.”
I have grave doubt of Mr. Justice Scudder’s power to continue to act as a justice of the Supreme Court in the present proceeding, such doubt arising in my mind by virtue of his designation as an associate justice of the Appellate Division in the Second Judicial Department.