Prior to the Constitution of 1846 the act of 1830 (chapter 320, § 21; 2 R. S. [Edm. ed.], 80, § 54) was in full force. It was passed to prevent a failure of justice, and in the events therein contemplated was indispensable to the settlement of estates and determination of the rights of the parties interested therein. Indeed without the aid of this statute the rights of the parties interested would have been in abeyance, and no one could lawfully take possession or care of the property. It is now to be decided whether a law having such a benign purpose has been abrogated by the Constitiir tion of 1846, or impliedly repealed by any statute since that date.
I do not think the commissioner provided for by the act of 1830 is in any sense a public officer; his position is very like that of a referee to try a cause, a commissioner to take an inquisition or testimony. Such persons are not public officers ; they are rather officers of the court, appointed for a specific purpose in a single case or matter, and having no power outside of the subject committed to *82them. Such commissioners do not therefore come within the second section of article 10 of the Constitution. Hence section 8, article 6 of the Constitution does not refer to such appointments when it says the judges “ shall not exercise any power of appointment to public ofSee.” The provision of section 15, article 6, permitting the legislature to provide for the election of local officers to discharge the duty of surrogates has no application to this case, since Delaware county has never applied for the passage of the law. What “might have been,” therefore, does not affect what is. There is nothing in the amendments of the Constitution since 1846 which affects the question under consideration. If, then, there is nothing in the act of 1880 repugnant to the Constitution of 1846, so far as this appointment is concerned, it is not abrogated by that Constitution. (Art. 1, § 17, Constitution of L846.) In my opinion- there is no inconsistency between the statute and the Constitution.
By the Constitution (art. 1, § 17) and the judiciary acts (Laws of 1847, chaps. 280, 470) the powers and duties of the chancellor were devolved upon the Supreme Court and its justices. The power in question could therefore be properly exercised by a justice of the Supreme Court at Special Term, unless the act of 1830 touching this appointment has since been repealed by implication. It is conceded it has not been repealed by direct terms. The judiciary act (§ 32 of chap. 470) simply changes the official titles contained in the act of 1830 to correspond with those given by the Constitution. It does not profess to repeal the act of 1830, nor does it have such effect except in the respects in which it is inconsistent therewith. The same is true of the act of 1871 (chap. 859, § 3). Neither of these acts, directly or by implication, repeal the clause of the act of 1830 authorizing a commissioner to be appointed when there is no pfficer in existence who can take the probate of a will. Repeal by implication is not favored; it can never occur except where the inconsistency and repugnancy of the two acts are plain and unavoidable. (Wallace v. Bassett, 41 Barb., 92; Potter’s Dwarris on Stat., 155, etc., and note 5, and cases cited; Daviess v. Fairbairn, 3 How. [U. S.], 636, 644; Goldson v. Buck, 15 East, 372.)
The authorities do not, in my judgment, justify the conclusion that the acts of 1847 or 1871 were intended to, or by reason of incon*83sistency did in fact, repeal the power given by the act of 1830 to appoint a commissioner to take the probate of a will when no other mode existed under the law whereby it could be done.
The various treatises on practice and revisions of the statutes since 1847 contain the law of 1830 in respect to appointment of commissioner as still in force. (2 R. S., 81, § 54 [Edm. ed.]; 3 id., 167, § 71 [5th ed.] ; 3 id., 87, § 86 [6th ed.]; Redf. Sur. Pr., p. 4; Dayton’s Sur. P., 46; 3 Fay’s Dig., 827.)
It is true this is not very conclusive evidence that the statute of 1830 was not repealed; but it presents the ideas of the various revisers and elementary writers upon that subject. As these treatises and revisions of the statutes have been the reliance of practitioners as ycell as officers, it is fair to assume that commissioners have been appointed for nearly twenty years past, as in this case, whenever the emergency arose. TJnder the authority thus given estates have been administered and settled, real estate sold and conveyed and conflicting rights determined. If it shall now be held that such action was a nullity, that the law authorizing it has been repealed, and that courts and Officers were all acting without jurisdiction, and hence were trespassers in all administrative acts, the consequences may he more serious than can now be apprehended. Besides it leaves this estate, of considerable magnitude, and possibly others similarly situated, to await the slow and doubtful process of legislation, before any person can be legally authorized to take possession and care of it. The death, resignation or expiration of term of the present county judge or district attorney, and the succession of a competent officer instead would relieve the embarrassment, but such contingency is too uncertain to be of value. Under such a state of facts courts should be slow to disregard so harmless and beneficent a statute, unless compelled to believe it no longer exists.
If the court had jurisdiction there is no difficulty in the matter of notice. The-appellant was guilty of gross laches in submitting to such objectionable order for more than four months after it was granted. During this time she attended the probate of the will and permitted executors to be appointed and to assume their duties. By reason of such neglect and the consequent complications, she ought not now to be heard to object.to the want of notice.
*84This view is strengthened in that no reason is assigned against Mr. Davidson as a commissioner, nor is a suspicion of unfairness or impropriety suggested against him. The objection is therefore purely technical, and the only consequences of respecting it would be mischievous and unprofitable.
For these reasons I think the order appealed from should be affirmed, with costs.
JBooKes, J., concurs.