(concurring.) I concur in the opinion of Justice Heeeerkait. A near view of the- question reduces it down to whether the delegation of power granted by the statute (Judiciary Law, § 143) carries with it the power which the defendants-appellants have assumed to exercise, viz., whether the grant of *576power to provide for and pay the additional compensation includes the power to decrease it at all, once the expressed power has been exercised. The power to decrease has not been expressly given but the claim is that it was granted by implication in the express grant. That the questioned power is at least a limited one has been made plain. That is undisputed. It is limited by the constitutional provision that it may not apply as to an existing tenure of office (N. Y. Const, art. VI, § 19); and also by the statute (Judiciary Law, § 142) which in effect forbids, wholly, any decrease in what had been provided for as of the effective date of that enactment. (L.-1926, ch. 155, § 2.)
We are thus pointed to an inquiry as to whether in the enactment of said statutes (Judiciary Law, §§ 142, 143) the Legislature intended to include the implied power which is contended for, and, if so, whether it was constitutionally delegable. In the first phase of this inquiry it may be said at the outset that the very omission itself of any express power to effect a decrease in the additional compensation, once it was provided for, is of some significance. If .it had been intended it would have been simple to record it. (Hyatt v. Taylor, 42 N. Y. 258, 262; Wm. B. Astor v. Mayor et al., 62 N. Y. 567, 578; Whitmore v. Mayor, 67 N. Y. 21, 22; Polhemus v. F. R. R. Co., 123 N. Y. 502, 507; Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514, 522; Matter of Thomas, 216 N. Y. 426, 429; People v. Fitch, 89 Hun 3Í0, 312-313; People ex rel. Smith v. Gilon, 66 App. Div. 25, 27.) While this rule of construction is somewhat relative, it has a pertinency here in that we are dealing with a delegation of legislative power to a local body to act in a particular situation of State concern.
It has been said that the lineage of an act ofttimes illuminates the legislative intent. The history of legislation upon the general subject-matter shows that over a long period of years there has been a general trend toward uniformity and a stabilized equalization in the fixing of salaries for higher judicial office. The wisdom of such policy is manifest. Prior to 1870 the legislation had been such that as of that year some judges of the Court of Appeals were receiving salaries of $6,000, and others $3,500, and some justices of the Supreme Court $5,000, and others $3,500. It seems to have been soon after that, however, that the trend toward uniformity became more marked. It has been practically arrived at in comparatively recent years. To read into the statute (Judiciary Law, § 143) the implied power for which defendants-appellants contend, would be to again open a Pandora’s box to inequality, inequity and confusion. This is *577illustrated by the effects, some known, some unknown, which have issued out of the amendments already made to the discriminatory resolution which has been condemned. I instance the uncertainty as to whether the salary of surrogate in the counties within greater New York, exclusive of Richmond, elected after certain dates, would, by force of said amendments and under the provisions of section 178 of the Judiciary Law, be equalized with the salary of those justices of the Supreme Court resident in the metropolitan area whose salaries are admittedly beyond the reach of reduction by defendants-appellants, or with the salaries of those who are less fortunate because of the exercise of the implied power contended for. Other well known rules of construction aid in the search. The grant of the express power now contained in the aforesaid section 143 has its origin as far back as 1852 (L. 1852, ch. 374, § 7) since which time its donee has never before assumed to act under the questioned power, by an effort to diminish what it was author-, ized to provide. (Grimmer v. Tenement House Dept., New York City, 205 N. Y. 549, 550; Gen. Fireproofing Co. v. Keepsdry Const. Co., 225 N. Y. 180, 186; McCarthy v. Woolston, 210 App. Div. 152, 156 and cases cited.) We may be assisted, too, by another rule that the construction of a statute is favored which makes it operate equally on those within its purview and which avoids unjust discrimination. (People ex rel. Beaman v. Feitner, 168 N. Y. 360, 366.) Patently a denial of the questioned power so operates. And, also, that when mischief will result from a construction which would use a different rule from that long followed, the customary or practical interpretation long acted upon will be followed if not clearly contrary to the legislative intent. (Matter of W. S. A. & P. R. R. Co., 115 N. Y. 442, 447-448.) We instance again the statutes’ long repose.
A simple study of the plain language of the statutes and a seemingly ready understanding of their terms is revealing. In reference to the compensation of justices of the Supreme Court, it is enacted (Judiciary Law* § 142) that those elected in the first and second judicial departments, “ shall continue to receive * * * as now provided by law, such additional compensation as they are now receiving * * and this pronouncement is made applicable “ * * * to the justices now in office and to those hereafter elected or appointed.” As to the petitioners-respondents, such was the law prior to their induction in office. It is undisputed that the above reference to what those *578then in office “ are now receiving ” was effective to prevent any subsequent reduction by defendants-appellants in the amount of additional compensation as it had then been fixed by them; but there must also be read with such pronouncement the further direction that such justices shall also continue to receive such additional compensation “ as now provided by law,” and this latter provision must in turn be interpreted in the light of the power delegated by the next section of the statute (§ 143) which gave power to increase the amount they were so receiving. The continuation to receive must be held to include any subsequent increase in the added increment. The phrase " as now provided by law,” must be held to include the delegated power to increase, for such power also continued as a part of the law. As thus read not only was the additional compensation as thus fixed (in 1926) rendered wholly incapable of reduction by defendants-appellants, but, when later increased by them, as provided by law, it was made to continue as an additional increment and, by express and unequivocal pronouncement, such was made applicable to those justices thereafter “ elected or appointed.” It seems plain that a plan of uniformity Avas thus aimed at and achieved. This being so defendants-appellants were without power to omit to provide and pay to, or to withhold from respondents the portions of their salaries which had thus been fixed and determined by law; and the attempt to clo so by the enactment of the discriminatory resolution Avas unauthorized for the statute itself thus provides a definite negation of the implied power under which they have assumed to act, and such action on their part amounts to an attempted use of a non-delegated if, indeed, not a nondelegable law-making poAver, conferred only upon the State Legislature, within constitutional limits.
If, in spite of the rules of construction above referred to, and in disagreement Avith the aforesaid analysis of the plain words of the statute, we should still say that the power to provide and pay the additional compensation impliedly carries with it, subject to the limitations aforesaid, the power to diminish it, we are then met with the question as to whether such implied power was delegable. We must here recognize that since the office of justice of the Supreme Court is a State office, the power to fix its salary is in the general law-making body of the State. (Freund v. Hogan, 264 N. Y. 203, 204.) While it may be readily granted, as a general proposition, that whenever a statute grants the power to do an act with unrestricted discretion as to the manner of its execution, all reasonable and *579necessary incidents in the manner of its exercise are also granted (Mayor, etc., of N. Y. v. Sands, 105 N. Y. 210, 215-216) this, however, is a far cry from implementing a doctrine of laissez faire in the general field of law making as regards the permitted act, once it has been performed as a function of the State Government. So in the case here, once the option to perform was exercised it became, in effect and to the extent of its reach, the completed act of the State in the fixing of the salary. To read into the option an implied power to undo or vary the effects of the act performed would thus translate it into a power which is nondelegable in the field, of general law making.- While the Legislature may confer discretion as to the administration of the law it may not delegate or surrender its authority to say what the law shall be. (Matter of N. Y. Elevated R. R. Co., 70 N. Y. 327; People v. Klinck Packing Co., 214 N. Y. 121, 138; People ex rel. Unger v. Kennedy, 207 N. Y. 533, 544.) The amount of the salary for the office, in this case, is a matter of “ what the law shall be.” The Legislature has spoken by saying, generally as regards the justices in the first and second judicial districts, that it shall be a certain amount plus such additional amount as the local body may determine. It is not now, nor has it ever been, suggested that it was unlawful to delegate the power to add an increase. Such a conferment must then relate itself, in the action upon the option, to the field of administration only, and when accomplished, as a permitted complement to the sovereign act, it merges in it and becomes a matter of what the Legislature has said the law shall be. Any subsequent change may only he made by sovereign act. I favor an affirmance of the order appealed from.