The character of this application can he fully appreciated only when we consider the possible consequences to flow from one branch of the court restraining or attempting to restrain, by continuing pendente lite a temporary injunction, the action or conduct of judicial officers of the same court and who constitute an appellate division thereof.
Plaintiff seeks not to stay the hands or conduct of litigants, but the performance of a duty cast upon “ the justices of the Appellate Division of the Supreme Court ” by legislative enactment, and in justification thereof asserts the unconstitutionality of the act vesting that duty.
By the statute in question those charged with the duty of making the appointment therein provided for, in so doing will act in their judicial capacity, not individually but as “ the justices of the Appellate Division of the Supreme Court ” in this department for that is the plain reading of the law.
I express no opinion upon the constitutionality of the act; that is unnecessary in view of the conclusion I have reached, and, in my opinion, the propriety of so doing here might well be questioned, or there is no presumption that a judicial officer will give, ■or attempt to give, effect to or act under a law which is violative of the Constitution, nor yet do that which is, either expressly or inferentially, forbidden by the organic or statute law of the State. That the contrary obtains needs no citation of authority.
If this law offends the Constitution, then the defendants as justices of the Appellate Division of the Supreme Court ” must so determine; that duty, as well as that calling for the appointment of a commissioner of jurors, is devolved upon them, for, as *140is well said in Norton v. Shelby County, 118 U. S. 442, “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”
Again, the defendants, as justices of the Supreme Court, are State officers, and the application for the temporary injunction was clearly within the inhibition of section 605 of the Code of Civil Procedure, and the order of May first, in so far as it undertook to enjoin the defendants as such justices, was and is a nullity.