(dissenting). I dissent and vote to affirm. I am unable to agree with the holding of the majority that petitioner, as clerk of the Surrogate’s Court of Brie County, was an “ independent officer ” rather than a “ subordinate employee ” and that, consequently, he is excluded from the protection from removal without charges or a hearing afforded to veterans in subordinate positions (Civil Service Law, § 22; Matter of Mylod v. Graves, 274 N. Y. 381; People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495; People ex rel. Fonda v. Morton, 148 N. Y. 156).
We are all in agreement that if we were to decide that the post in question is a subordinate position rather than an independent office, petitioner would be entitled to reinstatement. We are also in agreement that the marks or tests which distinguish an excluded independent officer from a covered employee are: (1) that he exercise some portion of the sovereign power (People ex rel. Hoefle v. Cahill, 188 N. Y. 489); and (2) that his office and his duties be prescribed by statute and that in the performance of his major duties he be not subject to the direction and control of a superior officer or, stated affirmatively, that he be subject only to such directions as the statute gives (Matter of Mylod v. Graves, supra, 274 N. Y. 381, 384; People ex rel. Jacobus v. Van Wyck, supra, 157 N. Y. 495). It matters not how important and responsible his duties be nor how much trust and confidence is placed in him, he is not an independent officer within the meaning of our decisions if he does not exercise some portion of the sovereign power or if he is subject to the direction and control of a superior officer. The mere statement of these well-grounded principles should be sufficient to refute the proposition that the usual clerk of a court is an independent officer (cf. Matter of Cappon v. Cleere, 177 Misc. 1027).
I now turn to the sections of the Surrogate’s Court Act which the majority point to as conferring upon this petitioner the status of an independent officer. As I read the statutes the contrary is manifest for nowhere is the petitioner authorized to exercise any of the surrogate’s powers of sovereignty and in every definition of power it is clear that he is subject to the direction and control of the surrogate at all times.
*590Section 33 requires the clerk of the Surrogate’s Court to keep a book and make entries in it — purely ministerial acts. Section 31 requires the parties to pay the travel and other expenses incurred in holding hearings away from the surrogate’s regular quarters.
Section 29 imposes a duty upon the clerk to collect fixed fees for the county for specified services. An examination of the details of this section discloses that there is left in the clerk no more discretion and independent judgment than there is in a parking meter. He is merely the name of the pipe through which the fees are channeled.
Section 32 defines the grant of power to the clerk and since main reliance is had on this section for the holding of the majority, that section must be carefully examined having in mind the realities of the everyday business of a busy Surrogate’s Court. Powers are conferred upon the clerk and the deputy clerk of the Surrogate’s Court of Erie County in 9 of the 11 subdivisions of section 32 and, it should be noted at the outset that the first paragraph of this section reads: “ The clerk and the deputy clerk of the surrogate’s court may severally exercise, concurrently with the surrogate, the following powers of the surrogate ”.
Under subdivision 1 the clerk may certify and sign any records of the court including all records or papers which a surrogate completed after having found them left uncompleted by his predecessor. By no reasonable interpretation of the language of subdivision 1 of section 32 and subdivision 9 of section 20 when read together can it be fairly said that power is conferred on the clerk to complete a record or paper left incomplete by a former surrogate. The clerk is authorized only to certify and sign. The power is the usual power given to a clerk of a court to sign a paper as clerk evidencing some action of the court and in so doing the clerk is acting merely as a scrivener. The clerk of the Court of Appeals certifies and signs all of the judgments of this court.
Under subdivision 2 the clerk is empowered to issue any citation, subpoena or other mandate to which a party is entitled as of course and he may sign as clerk and affix the seal of the court to any letters or mandates issued from this court. Since *591the only mandate the clerk is empowered to issue is one to which a party is entitled as of course and the only letters or mandates he may sign and seal as clerk are those otherwise properly issued by the court, none, other than a ministerial power, is here conferred.
Under subdivision 3 the clerk may certify in the manner prescribed by law a copy of any paper on file in the surrogate’s office. In other words he may compare the copy with the original and in writing assure the world that it is a true and complete copy of the original on file.
Under subdivision 4 the clerk may, when the surrogate is absent or busy, adjourn any matter to a definite time not beyond thirty days. If the surrogate is absent or busy, the matters arising would adjourn themselves from day to day to the inconvenience of all concerned. Power is herein granted to the clerk merely to convey to the parties an assurance that, without fear of default, they need not again attend until a day certain within the thirty days specified. This cannot be the exercise of sovereignty.
Under subdivision 5 the clerk is authorized to perform the functions of a notary public, but, outside Erie County and within the State, only if the Surrogate’s Court of Erie County has jurisdiction of the proceeding in which the oath is taken.
Under subdivision 6 the clerk may with the approval of the surrogate authorize one or more of the other clerics employed in the surrogate’s office to exercise any of the powers given to the clerk in this section. If the clerk is given no independent authority otherwise by this section, then, of course, the power to delegate his ministerial powers cannot make him an independent officer. The validating provision is merely the usual device to prevent reopenings etc., on technical grounds similar to those applying to notaries public.
Subdivision 7 confers no powers and subdivision 9 does not apply in Erie County.
Under subdivision 8 the clerk, deputy clerk and others designated by the surrogate are empowered to take proof of an uncontested will. In plain words, this means that the clerk or practically anyone else employed in the surrogate’s office may, where there is no contest, take the oath of the subscribing wit*592nesses to a will when they sign and swear to a statement on a printed blank describing the execution of the will. The surrogate complies with section 144 of the Surrogate’s Court Act by designing a printed form with blanks to be filled in to elicit from the witnesses such information as he deems essential to prove a will where there is no objection or contest and no request to cross-examine the witnesses. The clerk does not become more of an independent officer whether he takes a few such oaths or many.
Under subdivision 10 the surrogate is empowered to direct the clerk and others to take under oath and report the testimony in any proceeding but without authority to pass on any of the issues. In Matter of Feit (278 App. Div. 944) and in Matter of Nowakowski (284 App. Div. 655), the Appellate Divisions have had occasion to examine the scope of the power conferred by this subdivision. In the latter case the Appellate Division said (pp. 656-657): “ The surrogate is a judicial officer of a constitutional court. (N. Y. Const., art. VI, § 13.) We know of no authority by which the surrogate may confer his judicial powers to hear, try and determine upon some appointed clerk in his office. * * * It is a basic duty of a judge, including surrogates, to see and hear all witnesses upon the trial of contested actions or proceedings. The abrogation of such duty is in conflict with the constitutional oath of office which each is required to take.”
If more than the ministerial powers to swear the witnesses and, a stenographer being present, to supervise the orderly questioning of witnesses by counsel in routine matters was intended, I think it is clear that the excess is unconstitutional.
Under subdivision 11 the surrogate is empowered to authorize the clerk and many others: (1) to sign the name of the surrogate to decrees in uncontested proceedings but only where the surrogate has decided the matter by a filed ivritten decision and (2) to sign the surrogate’s name to orders previously granted by the surrogate permitting safe-deposit boxes to be opened. Again, the clerk may put into writing what the court has authorized.
In summary, the statute says expressly that these enumerated powers are the powers of the surrogate and not independent *593powers. The clerk usually has no statutory duties of his own but is given some of the minor and clerical duties of the surrogate and none of these permit him the slightest exercise of sovereign power. Our courts have been able to keep abreast of the complexities of today’s society as well as they have because they have been able to delegate the routine, ministerial and mechanical portion of their work to subordinates — not as assistant judges but as clerks under the complete domination, direction and control of the courts. And in the instant case, that control and direction is not by way of judicial or administrative review but, rather, all of the power is in the surrogate and he directs and controls its exercise by his omnipresence. This is far different from review.
Next we should examine into the nonstatutory duties and powers of the clerk. In the present case the petitioner concededly directed the administrative processes of the everyday business of the surrogate’s office as the clerks of all courts do. The word clerk itself comes from cleric a minor religious functionary who was educated to read and write at a time when not many of the lay citizenry were literate. His earliest functions were to make written minutes of the pronouncements of the courts and to make the same available in the form and at the time directed by the court. Even today, these are the basic functions of the clerk of the Surrogate’s Court. In our populous cities, however, these basic and simple functions may be hidden by the embellishments of departmentalized staffs, under the immediate supervision and apparent administrative direction of the clerk. In this supervision the clerk does exercise as stated in the majority opinion, “ a high degree of initiative and independent judgment ” and “ broad authority and extensive discretion ” and there is ‘‘ heavy responsibility granted to him ’ ’ and ‘ ‘ high confidence reposed in him ”. I would remind you again that these are not statutory powers and duties and statutory powers are essential to the status of an independent officer. The only discretion which the clerk can possibly exercise depends solely upon the authority given him by the surrogate. But more important the clerk is not the court executive, the one who initiates and directs, but at most can do only that which is required of him by the surrogate. That subordinate status was *594intended is further borne out by the fact that prior to 1935 section 5 of the Surrogate’s Court Act declared flatly that the surrogate was liable for any act of the clerk. That section has been repealed but none of the attributes of the relationship and none of the powers and duties of the petitioner have been changed. In such a state of the statute I cannot understand how this court may now say that the Legislature constituted the clerk the alter ego of the surrogate, or if you prefer, an independent officer.
As stated in the majority opinion, the rule is firmly established that each case must be decided upon its own facts. Reference to our prior decisions construing section 22 of the Civil Service Law in order to compare what positions we have held to be independent offices with those we have held to be subordinate employees would serve no useful purpose because we are all agreed that all of these cases stand four square for the proposition that a person cannot be excluded from the protection of the statute as an independent officer unless he exercises, pursuant to statute and without the direction or control of a superior officer, some portion of the sovereign power. It has been demonstrated, I think, that petitioner did not.
Matter of Bergerman v. Byrnes (305 N. Y. 811) is cited and strongly relied upon as persuasive authority for the holding that petitioner is an independent officer. In that case we had before us a proceeding brought to review a determination of the municipal civil service commission holding the commissioner of records of the City of New York to be a “ principal executive officer ’ ’ within the meaning of subdivision 1 of section 13 of the Civil Service Law. There the Civil Service Commission had found from the statutory creation of the position and description of its duties that the office was one requiring independent judgment and discretion and if reasonable minds might differ in making that determination, the courts were precluded from upsetting it. The petitioner here may even be, in civil service language, a “ principal executive officer ” insofar as his non-statutory duties are concerned but, for the reasons stated above, it would not follow that he is an independent officer in the case before ns.
*595On this record we should not say that the status of this petitioner is that of an independent officer. The clear-cut distinction between the legal status of a subordinate employee and an independent officer is not a matter of expedience but represents the cumulative experience of many generations in dealing with government personnel. Fundamental as it is in our body politic that qualified veterans should not be whimsically removed from public service (Civil Service Law, § 22), it is equally important that the long-established concept of an independent officer should not be changed by judicial fiat in order to remove petitioner without charges and without a hearing.
The order appealed from should be affirmed, with costs, and the petitioner should be reinstated in Ms position and reimbursed for Ms back salary.
Conway, Ch. J., Fbobssel, Van Voorhis and Burke, JJ., concur with Fuld, J.; Dye, J., dissents in an opinion; Desmond, J., taking no part.
Order reversed, etc.