(dissenting):
The office of surrogate existed before the Constitution of 1821, but is not mentioned therein. The surrogate, therefore, was to be elected or appointed, as might by law be directed. . (Const. 1821, art. 4, § 15.) By the Revised Statutes, following the statute of 1823 (chap. 70, § 7), surrogates were to be appointed by the governor, with the consent of the senate. (1 R. S. [2d' ed.], m. p., 107 § 15 [9].) It was also provided that, if the surrogate were disqualified, the first judge of the county should “be vested with all the powers and authority of the surrogate in relation to the proof of any such will,” etc. (2 R. S. [2d ed.], m. p., 79, §49.) In such case he was to possess all the powers and authority of a surrogate, and his orders and decrees in like manner were subject to appeal. (§ 51.) If both the surrogate and first judge were disqualified, and when their offices were vacant, the district attorney was to have the same powers as by the previous sections were given to the first judge. And when there was no person “capable of acting under the provisions of this title, the chancellor, upon petition, shall issue a commission to some suitable person empowering him to act as surrogate in the premises.” (§ 54, as amended by Session Laws 1830, chap. 320, § 20.) Thus this appointing power applied both to a case of disqualification and to a vacancy in the office of surrogate, first judge and district attorney. While the law stood thus the Constitution of 1846 was adopted. This abolished the office of chancellor, giving law and equity jurisdiction to the new Supreme Court created thereby. (Art. 14, § 8; art. 6, § 3.) It abolished the office of judge of the County Court and of surrogate— except as therein otherwise provided. (Art. 14, § 8.)
*85It directed the election of a county judge in each county, except New York, and declared that he should perform the duties of surrogate. It declared that, in certain counties, the legislature might provide for the election of a separate officer to perform the duties of surrogate. (Art. 6, § 14.)
It further declared that, on the-application of supervisors, the legislature might provide for the election of local officers, not to exceed two in any county, “to discharge the duties of county judge and of surrogate, in cases of their inability or of a vacancy.” (Art. 6 § 15.) . .
It declared that all county officers * * * should be elected by the electors of the counties, or appointed by the supervisor or other county authorities; that all other officers, not provided for- thereby, should be elected or appointed as the legislature should direct. (Art. 10, § 2.)
It declared that the justices of the Supreme Court should not exercise any power of appointment to public office. (Art. 6, § 8.)
The question now is, whether the power of appointing an acting surrogate, under the statute of 1830, survived these changes.
I think it did not.
First. The only power given to the Supreme Court is “ general jurisdiction in law and equity.” There is nothing in the Constitution which retains to that court any power which belonged to the chancellor, unless it be embraced in the description, “jurisdiction in equity.”' It is plain that the appointment of an officer to hold a Surrogate’s Court was not an exercise of equity jurisdiction. The person appointed was not, like a master in chancery, an officer of the Court of Chancery. He was, pro tempore, a surrogate 'holding an independent court. In. appointing such a person the chancellor exercised not a judicial, but an administrative function — the same which the governor exercised when he appointed the permanent surrogate. The office of chancellor, with its functions, was abolished ; while equity jurisdiction was given to the Supreme Court: The judiciary act (Session Laws 1847, chap. 280, § 16), giving to the justices of the Supreme Court the powers and jurisdiction of the chancellor and other officers, qualified the language by adding, “ so far as consistent with the Constitution and provisions of this act.” And the amendatory act of the same year *86(chap. 470, § 32) made provision for the case of disability of a surrogate.
Second. Section 8 of article 6 absolutely prohibited justices of the Supreme Court from exercising any power of appointment to public office. This provision seems to apply to this very power, for it can hardly be said that the office of an acting surrogate, especially when the appointment is to fill a vaoaney, is not a public office.
It is true, that article 6, as adopted in 1869, section 10, which corresponds with section 8 in the Constitution of 1846, omits this prohibition. And it is possible, therefore, that in some cases, a power of appointment may now be given by the legislature to the justices of the Supreme Court. But since the adoption of that article no legislation on this point has been had. And a law which was practically annulled by the Constitution of 1846, and had remained so for more than twenty years, is not to become in •force again by the removal of this restriction. No new power is conferred thereby on the Supreme Court.
When the legislature, in the judiciary act, gave to the justices of the Supreme Court the power and jurisdiction of the chancellor, not inconsistent with the Constitution, they did not give to those justices this power of appointment, because this power was inconsistent with the Constitution. The power, therefore, was not then given to the Supreme Court, and it has never been given since. Indeed as will be shown farther on, every enactment of the legislature on this subject is inconsistent with such an appointing power.
Third. The whole scope of the Constitution of 1846 is inconsistent with this power. Article 6, as adopted in 1869, does not differ in the points important to this case from the original article. This Constitution generally took away all appointing power and made officers, judicial and other, elective. When such is the general intent of that instrument it needs strong reasons to show that an appointing power previously existing was retained.
1. The Constitution required the election of surrogates. (Art. 6, §14, or § 15 of the amended act.) It further required that county officers, whose election or appointment was not thereby provided for, should be elected by electors, or appointed by county authori*87ties. (Art. 10, § 2.) That such acting surrogate is an officer seems indisputable, for he is to exercise a judicial function. That he is a cov/nty officer is, I think, plain. In harmony with this view, such an acting surrogate has been held entitled to the same salary with the surrogate, payable from the same source. (In re Wolford, Albany Special Term, 1876.)
He takes the place of one who is undoubtedly a county officer, and his jurisdiction is confined to the county limits. (See In re Carpenter, 7 Barb., 30.) For it is important to notice that the statute,- under which this power is claimed (2 R. S. [2d ed.], m. p., 80, § 54), applies not merely to a temporary disqualification of the surrogate, first judge and district attorney, but includes the ease of a vacancy in those three offices: “ When there shall be no person capable of acting under the provisions of this title, the chancellor,” etc. And there could be no. doubt that in ease of a vacancy of those three officers, the person appointed by the chancellor would hold a county office. That the Supreme Court should possess the power of appointing to a county office can hardly be claimed.
2. The Constitution authorizes, in case of disability or vacancy in the office of county judge and surrogate, the election of not more than two “ local officers ” in each county. (Art. 6, §§ 15,16.)
This is a plain indication that in no other way were disabilities or a vacancy to be provided for. And furthermore, this clause is inconsistent with the section (54) above cited. For suppose that, in any county, the legislature has authorized and the people have elected two “ local officers.” Now if section 54 be still in force, then notwithstanding such election of “ local officers,” the Supreme Court is to appoint, whenever the surrogate, first judge (county judge) and district attorney are disqualified. Because they are the only persons capable of acting “ under the provisions of that title.” This unreasonable result shows that section 54 cannot be held to have been operative after the Constitution of 1846 went into effect.
3. The legislature by their acts contemporaneous and subsequent, have given a construction to the Constitution inconsistent with the supposition that the legislature recognized this power of appointment as in force. This construction “ lias almost the force of a judicial exposition.” (People v. Dayton, 55 N. Y., 367.) Thus, after the adoption of the Constitution, in the amendment of the *88judiciary act (Sess. Laws, 1847, chap. 470, § 32), the legislature authorized the county judge and the district attorney to act in case of disqualification of the surrogate, and the want of any “ local officer.” This was substantially a re-enactment of a part of the former provisions, which are above mentioned. But they omitted any provision for the appointment of an acting surrogate. Now if the former statute was still in force there was no need of this re-enactment ; and, at any rate, the omission of this appointing power in an act designed to provide for such contingencies, shows that it is not intended to be in force.
So again, after the passage of the new article 6 of the Constitution, some further legislation as to the judiciary became necessary. Accordingly in the Session Laws of Í871 (chap. 859, § 8), provision is again made for the same case of disqualification of the surrogate and of the county judge. The district attorney is authorized to act, and his compensation is provided for. But no mention is made of any right to appoint an acting surrogate. (See Holmes v. Smith, 10 S. C. N. Y. [3 Hun], 413.)
We have, then, two enactments by the legislature of a law to provide judicial officers who shall act, in case the surrogate is disqualified, or in case his office is vacant. These enactments are on the same subject with the sections above referred to (2 R. S. [2d ed.], m. p., 79, §§ 49 to 54), and are analogous to those sections. In fact there is no difference, except that the “local officer” is mentioned and that the county judge is named instead of the first judge of the county. In neither of these re-enactments (for such they are) is any authority given to the Supreme Court, or to any one, to appoint an acting surrogate. The inference seems to me irresistible that the legislature intended that no such authority should exist.
And this inference is the more forcible when we consider that article 6, adopted in 1869, omitted (as before remarked) the prohibition on justices of the Supreme Court from exercising any appointing power. If, then, the legislature had desired to return to the old system, they could have easily modified chapter 859 of 1871, accordingly ; that is, provided such appointment of a county officer be allowed by the other parts of the Constitution.
I do not think that a person thus appointed is like a referee. A *89referee is merely an officer of the court in which he is appointed. The person commissioned by the chancellor was not an officer of the Court of Chancery. He was the judge of another court, to act as surrogate, with jurisdiction of cases not belonging to equity. (Colton v. Ross, 2 Paige, 396.)
Por these reasons, I think the order should be reversed.
Present — Learned, P. J., DoaRdmaN and Bocees, JJ.Order affirmed, with ten dollars costs and printing.