(concurring in part). I vote to deny the application in its entirety.
(1) Section 382 and section 122 of the Greater New York Charter (Laws of 1901, chap. 466, as amd. by Laws of 1923, chap. 780, for | 382) make the procedure with respect to sheriffs, in article 10, *599section 1, of the State Constitution, govern the removal of a borough president by a Governor. That provision, so far as pertinent, is: “ The Governor may remove [a borough president] * * * within the term for which he shall have been elected; giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense.”
This is a grant of absolute power of removal without limitation of any kind, except the single limitation that the officer shall receive a copy of the charges against him and have an opportunity to be heard in his defense. No other limitation may be read into this constitutional grant to the Executive of the power of removal of such an officer. The constitutional debates and authorities establish this. (Matter of Guden, 171 N. Y. 529.) The untrammeled nature of this constitutional grant of power should control the construction to be placed upon sections 33 and 34 of the Public Officers Law. Section 33 parallels in its pertinent language the above-quoted constitutional provision. Section 34 says the Governor, instead of taking evidence himself, may direct “ that the evidence be taken ” by certain specified individuals, including a Supreme Court justice, and require such an individual to report the evidence taken in such proceeding, or the evidence and the findings of said individual of the material facts deemed to be established by that evidence.
The language of section 34 should not be construed to hobble or hamper the purpose for which it is designed, of enabling the designee efficiently to inform the Executive in an advisory -way. It is indisputable that under section 34 the justice or other individual deputized to take the evidence cannot make a binding decision.
There is nothing in any constitutional or statutory provision that directly empowers or authorizes this court to pass judgment upon the qualifications of the individual designated by the Governor to act for him in taking evidence. This court may hot exercise that power by indirection. The Governor is the sole judge df the qualifications of the individual that he selects within the classes specified in the statute.
This court would have no power to declare that the Governor is wanting in the requisites of an impartial tribunal if he acted himself, in the instant case, instead of through a deputy or designee, so long as he observed the constitutional requirements of furnishing a copy of the charges and of giving the respondent an opportunity to be heard. No court would have the power to pass judgment upon whether the Governor was or was not prejudiced by reason of information he had obtained prior to the hearings. -
By like token this court has no power to review or determine the *600degree of impartiality or integrity of the deputy or designee whom the Governor under the statute requires tó take the evidence for him. . If perchance the instrument he selects should be corrupt or biased, that is for him to consider in connection with the weight to be given to such designee’s advisory opinion. If such a deputy or designee be faithless oi worthless, it presents no question with which this court may,concern itself; that is for the Governor. Therefore, if it be assumed that the Supreme Court justice deputized and designated by the Governor has become disabled and biased by reason of having gained impressions from information received in the absence of the respondent, this court may not restrain or attempt to restrain such designated justice from acting under the designation given by the Governor. It could not restrain the Governor similarly situated and similarly biased, and it, therefore, may not restrain the Governor’s agent similarly affected. There is no constitutional or valid statutory requirement that the Governor should be free from the effects of information upon his mind received in the absence of the accused; likewise, there is a similar lack in regard to the Governor’s designee or deputy. To hold otherwise would be a judicial usurpation of executive power without even colorable authority in law, and such an attempted usurpation a virile Executive could properly ignore and nullify with the power at his command. (State of Mississippi v. Johnson, 71 U. S. [4 Wall.] 475,500.) This is so, because the power of removal is reposed solely in the Executive, without limitation of any kind other than that the officer involved be given a copy of the charges and an opportunity to be heard in his defense.
Mr. Justice Scudder, acting in aid of the exercise of executive power, is not subject to prohibition upon any ground with respect to his qualifications, that is, with respect to alleged prejudice, bias or unfitness, predicated upon any ground whatsoever. The sole judge in that respect of the designee of a Governor is the Governor himself.
The statutory provision authorizing Mr. Justice Scudder’s selection is not invalid. The taking of evidence is an activity of a judicial nature, but doing so at request of the Governor in aid of the exercise of executive power, does not constitute the taking or holding of another office or public trust on the part of a Supreme Court justice. (People ex rel. Fennell v. Wilmot, 127 Misc. 791.) The well-settled attributes of office are absent herein. (People ex rel. Washington v. Nichols, 52 N. Y. 478, 484, 485.)
Section 34 of the Public Officers Law is a legislative specification of the means available to the Governor to perform his constitutional function. It may not be construed to. limit the means available *601to him under article 10, section 1, of the Constitution. It authorizes the Governor to confer the power upon a Supreme Court justice as such, as distinguished from the Supreme Court, to act1 in aid of the Executive as a person and not as an official. The1 books are replete with instances where executive or administrative duties have been conferred upon a judicial officer as distinguished from the court, where they concern acts which are akin to judicial activities and have a reasonable relation thereto and the exercise of the function is “ merely transient, occasional or incidental.” (People ex rel. Washington v. Nichols, 52 N. Y. 478; Matter of Davies, 168 id. 89, 102; People ex rel. Welch v. Bard, 209 id. 304; Matter of Mitchel v. Cropsey, 177 App. Div. 663, 669.) In this instance the power conferred upon a justice as a person or commissioner to do an administrative act is required to be performed on transient occasions. The methods of the inquiry take on some of the characteristics of a judicial proceeding, and their performance is properly deemed transient as well as incidental to the judicial office. Since the designee does not make a binding decision, the proceeding is not a judicial proceeding. (People ex rel. Bender v. Milliken, 185 N. Y. 35, 40, 41; Matter of Mitchel v. Cropsey, 177 App. Div. 663, 667.) Therefore, the justice designated is not incapacitated from taking the evidence he was designated by the Governor to take, since the conferring of this degree of administrative work of a judicial nature upon a judicial officer is permissible, being “ transient, occasional or incidental.”
The performing of a function which utilizes the methods commonly found in judicial proceedings for fact finding does not change the true nature and character of the main body of the act where such methods of a judicial nature are merely incidental. There are instances without number where fact finding by methods judicial in their nature, and the making of recommendations founded thereon or acting thereon, have been held to be validly indulged in by the Legislature and the Executive. (Executive Law, § 8; Legislative Law, § 60; Civil Service Law, § 6; People v. Klinck Packing Co., 214 N. Y. 121,139; Village of Saratoga Spgs. v. Saratoga Gas, etc., Co., 191 id. 123; Matter of Guden, supra; People ex rel. Bender v. Milliken, supra; People ex rel. Smith v. Doyle, 44 App. Div. 402; 162 N. Y. 659; Commonwealth v. Sisson, 189 Mass. 247.) These holdings are consistent with then converse, the doing on transient, occasional or incidental instances by the judiciary of acts which are susceptible of being deemed administrative or executive acts. (People v. Hall, 169 N. Y. 184; Matter of Davies, 168 id. 89, 102; Matter of Mitchel v. Cropsey, 177 App. Div. 663, 669.)
It is not necessary to here decide whether subpoenas are valid *602which require the attendance of witnesses at hearings at which the defendant is not present. This is said without intimating that they are invalid.
The sole question here is whether the acquisition or acquirement of information relating to the merits of the charges by the deputy or designee of the Governor, other .than at hearings at which the respondent has been directed to attend, disqualifies him from acting at the public hearings. That is a question with which this court has no concern, and, therefore, prohibition may not issue. Especially is this so where its issuance would involve public inconvenience and cause a greater mischief than could possibly ensue from denying its issuance. (People ex rel. First Nat. Bank of Kingston v. Supervisors Ulster County, 31 How. Pr. 237.)
It may not be presumed as a matter of law that the Governor will accept or give undue weight to the opinion of his designee, if it be made apparent to him that the opinion of that designee is not founded upon the evidence which he reports back to the Governor. ■ There is authority holding that the learning of some facts ex parte does not necessarily disqualify a trained judicial officer from rendering an impartial judgment upon and after a hearing of the adverse party (Citizens’ Sav. Bank v. Town of Greenburgh, 173 N. Y. 215), or even of reviewing his own decision impartially. (Pierce v. Delamater, 1 N. Y. 17, 18.)
Assuming the nature of the duties required by the Governor’s authorization to be performed by Mr. Justice Sctjdder is as has been indicated, then no infirmity results from the point which has been raised by Mr. Justice Kapper, and not by any of the parties hereto. In People v. Hall (169 N. Y. 184) it was held that the devolving of an executive, duty on justices of the Appellate Division was not invalid by reason of article 6, section 2, of the Constitution. In that case the Appellate Division justices were authorized to appoint jury commissioners.
(2) Moreover, if it be assumed that the duties required of Mr. Justice Scudder by the Governor are not those of an Executive investigator, which they are, and that the acts required of him constitute a judicial proceeding, which they do not, because the prime essential to a judicial proceeding is absent (the power to make a decision and enforce it), still prohibition may not issue upon the ground it is sought herein.
Bias is not a disqualification in advance of a trial. (People ex rel. Devery v. Jerome, 36 Misc. 256; Judiciary Law, § 15, as amd. by Laws of 1917, chap. 28.) It may only be urged after a tiial that “ justice requires” that it be held to have affected the result. (People v. Lennon, 206 App. Div. 266, 268; People *603v. Naimark, 154 id. 760.) Then the inquiry would be, was there bias, and did it affect the result to the detriment of the one claimed to have been aggrieved? If it did not exist, or if, existing, it did not unjustly affect the result, it would be no ground for a successful appeal. In this case the opportunity to urge it, if occasion ever requires, is afforded by the constitutional and statutory provisions under which the investigation is being had. It may be that the justice herein deputized to act as a commissioner in an executive investigation, even though deemed to be biased, may advise favorably to the respondent, and if he advises unfavorably the claim of bias may be appraised and valued at its true worth by the Governor.
Article 6, section 2, of the Constitution declares that a Supreme Court justice designated to sit in the Appellate Division may not “ exercise any of the powers of a Justice of the Supreme Court, other than those of a Justice out of court * * This does not affect the deputizing of Mr. Justice Scudder herein by the Governor to investigate for him. When acting under that designation he does not act as a Supreme Court justice. The enacting of a special provision as to subpoena power shows that he does not act as a justice. The reference to a Supreme Court justice is merely descriptive of one class of individuals who may be designated. It requires him to act under section 34 of the Public Officers Law, which authorizes the Governor to appoint any person as a commissioner to act for him, including among such available persons certain specified judicial officers, among others a Supreme Court justice. When any person, whether he is an incumbent of an office or not, acts on behalf of the Governor, he does so under section 34 of the Public Officers Law as a deputy of the Governor, and, as is described in the section, he acts as a commissioner.
This view has received practical application in the recent deputizing of Mr. Justice McAvoy, an Appellate Division justice, to conduct a transit investigation on behalf of the Governor, under section 8 of the Executive Law. That statute did not specify that a Supreme Court justice might act, but merely stated that the Governor could appoint one or more persons to act for him to investigate State bureaus or commissions. That section recognized that such persons so designated might be regularly in the service of the State, though it did not specify a Supreme Court justice, because of a provision for compensation for a designated person if he was not in the service of the State. In that instance it was no doubt considered whether an Appellate Division justice acting thereunder was qualified to act in the light of the effect upon the powers of a justice of the Supreme Court by reason of a designa*604tion to sit in the Appellate Division, under article 6, section 2, of the Constitution.
Accordingly, upon the first ground stated, I vote to deny the application in its entirety.
Petition for alternative prohibition order granted to the extent of commanding the Hon. Townsend Scudder, a justice of the Supreme Court, to desist and refrain, until the further direction of this court, from any further proceedings in the matter of charges against the petitioner by way of taking and hearing the evidence of witnesses except at a hearing at which the petitioner is afforded an opportunity of being present. In all other respects the petition is denied. Settle order on notice.