Although not concurring in the opinion of Mr. Justice Whitman respecting the constitutional question discussed by him, I have nevertheless arrived at the same ultimate conclusion upon another view of the case.
The statute (Stats. 1866, 237, Sec. 36) declares that “ every office shall become vacant upon the occurring of either of the following events before the expiration of the term of office,” among which is “ the confirmed insanity of the incumbent found upon a commission of lunacy issued to determine the fact.” Two things it will be observed, are essential under this Act to create the vacancy: First, the insanity must be confirmed; and second, that fact must be found by a “ Commission of Lunacy.” But the' proceedings whereby it is sought to establish a vacancy in the office to which the defendant was appointed, not only do not show the exist*337ence of these two pre-requisites, but on the contrary, show that the insanity is not of this character; and furthermore, that the question was not submitted to nor was the insanity found by a commission of lunacy. The proceedings had against Judge Chase, as shown by the record, were such only as are authorized by special statute, providing for the case of persons who may be afflicted with curable insanity, or such as would render it dangerous for them to be at large. The character of proceeding prescribed by that statute to determine the fact bears but little resemblance to a commission of lunacy, or the course pursued under it. That is a commission generally issuing out of a Court of Chancery to certain persons called Commissioners, who are required to inquire whether the person alleged to be insane be so or not. In executing this commission a jury is usually summoned, and the jurors and Commissioners sit together and forra the Court, for the purpose of determining the fact. The jury are all sworn or affirmed, and they hear such evidence as the Commissioners admit; and generally notice of the inquisition is required to be given to the alleged lunatic, who is permitted to traverse the allegation of insanity. It is not pretended that such proceedings, or anything analogous to them, were had in this case, and the vacancy because of insanity could only happen in the manner and by the means pointed out by. the statute.
For these reasons I concur in the conclusion that no vacancy existed in the office to which the defendant was appointed, and that his commission was void.