in public of any member of the board of aldermen, commissioner, head of department, etc., on affidavit of the mayor, etc., or any five citizens who are taxpayers, and providing that the examination shall be confined to an inquiry into any diversion or misapplication of funds, is not uncon stitutional, as conferring nonjudicial functions upon justices of the Supreme Court, since in the proceeding judicial methods are used and judicial powers incidentally invoked.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 123.] 6. MUNICIPAL CORPORATIONS 63(1)-EXAMINATION OF OFFICIAL STATUTE. New York City Charter, § 1543, authorizing a justice of the Supreme Court to order a summary examination in public of any member of the board of aldermen, etc., to inquire into any wrongful diversion of funds, etc., does not authorize an examination of the mayor and other city officials relative to a proposed contract between the city and a railroad, pending before the board of estimate and apportionment, to carry out powers granted by the Legislature relative to a change in the railroad's line. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 155, 1384, 1879.]

7. MUNICIPAL CORPORATIONS 63(1)—EXAMINATION OF MAYOR-STATUTE. The statute gives no authority to summon the mayor for examination; the application of ejusdem generis preventing the word "officer" in the statute from including the mayor, and his official position preventing the word "person" from applying to him.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 155, 1384, 1879.]

8. PROHIBITION 5(3)—PROPRIETY OF REMEDY.

Writ of prohibition is a proper remedy to require a justice of the Supreme Court to desist from further proceedings under an order for the examination of the mayor of the city of New York under New York City Charter, § 1543, since the justice making the order acts as a judge, so that the writ of prohibition, peculiar to judicial tribunals, is a proper remedy.

[Ed. Note. For other cases, see Prohibition, Cent. Dig. §§ 24-29.]

9. PROHIBITION 3(1)—EXTRAORDINARY CHARACTER OF REMEDY.

The remedy by prohibition is extraordinary, and available only if there is no other remedy.

[Ed. Note. For other cases, see Prohibition, Cent. Dig. § 4.]

10. COURTS ~237(3)—APPELLATE DIVISION-JURISDICTION TO ENTERTAIN MOTIONS STATUTES.

Under Const. art. 6, § 2, providing that after the last day of December, 1895, the Appellate Division shall have the jurisdiction now exercised by the Supreme Court at its General Term, and such additional jurisdic-tion as may be conferred by the Legislature, the Appellate Division can entertain motion to vacate an order made by a justice of the Supreme Court pursuant to New York City charter, § 1543, for the examination of the mayor, though the motion is not authorized by Code Civ. Proc. § 1348, and though the Appellate Division ordinarily will not entertain such motions, since the Special Term, having the jurisdiction as to orders of the General Term, could have entertained it, and therefore the Appellate Division may.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 683-686, 688.] In the matter of the application of John Purroy Mitchel, Mayor of the City of New York, for writ of prohibition against Hon. James C. Cropsey, a Justice of the Supreme Court of the State of New York, and others, directing him to desist from further proceedings under

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes. 164 N.Y.S.-22

an order for the examination of said Mitchel and others, on application of William H. Conley and others. Motion for writ of prohibition denied, and motion to vacate the order for the examination of the Mayor and others granted, and that order vacated and set aside.

Motion for an alternative writ of prohibition directed to Justice Cropsey, of the Supreme Court, commanding him to desist from further proceedings under an order made by him pursuant to section 1543 of the charter of the city of New York, dated March 2, 1917, for the examination of John Purroy Mitchel, mayor of the city, and other city officials therein named. At the same time there was presented and argued a motion to this court to vacate the order for the examination.

Pursuant to chapter 777 of the Laws of 1911, the board of estimate and apportionment was considering a proposed contract with the New York Central Railroad to remove the tracks of the railroad from the streets of the city at grade, and to effect many changes as to the location and character of the road from Dyckman street to Battery Park. Plans and profiles and maps of the proposed work had been made, reports of committees received, a proposed contract drawn, the matter referred to a committee of the whole, and a public hearing advertised. Further proceedings were halted on January 15, 1917, by a preliminary injunction granted in a taxpayer's action. Meanwhile, and pending the taxpayer's action, and while the board is yet under said injunction, the order which is the subject of these proceedings was granted.

Argued before JENKS, P. J., and THOMAS, STAPLETON, RICH, and BLACKMAR, JJ.

Charles E. Hughes, of New York City (Lamar Hardy, Corporation Counsel, of New York City, on the brief), for the motion. William M. Bennett, of New York City, opposed.

BLACKMAR, J. We are met at the threshold of the case by the claim that the statute (section 1534 of the charter of the city) is unconstitutional because it is said to confer nonjudicial functions upon justices of the Supreme Court. The statute authorizes a justice of the Supreme Court in the first or second judicial department to order a summary examination in public of any member of the board of aldermen, commissioner, head of department, chief of bureau, deputy thereof or clerk therein, or other officer of the corporation or person. It provides that the order shall be based on an affidavit of the mayor, or of the comptroller, or any five members of the board of aldermen, or any commissioner of accounts, or any five citizens who are taxpayers, that the examination shall be confined to an inquiry into any alleged wrongful diversion or misapplication of any moneys or fund, or any violation of the provisions of law, qualification or neglect of duty of inspectors, or delinquency charged in the affidavit touching the office or the discharge or neglect of duty, and that the examination may be continued before any other justice in the department. The act provides that the justice holding the examination may summon witnesses and punish any refusal to attend or testify as for a contempt of court, and that said justice shall have as full powers to enforce obedience to the order or directions of himself or any other justice, as any justice of the court may have in any other case or matter whatever. Such examination is to be reduced to writing, filed in the office of the county clerk and shall be accessible to the public,

and that notice of the same shall be given to the department in which said officer is employed.

[1] The end and object of the proceeding is the taking of testimony regarding alleged wrongful acts of city officers, for publicity and for the information of a city department. A proceeding which has this end and object is not a judicial proceeding. All the power and authority conferred by the act, except perhaps the power to punish for contempt, may be and often is intrusted to commissioners and boards, which are in no sense judicial tribunals. Instances of this are the powers conferred on the commissioners of account, civil service commissions, public service commissions, the banking department, and the board of aldermen. It is not related to any judicial action. Analogous statutes, known as the "anti-monopoly laws," being chapter 383 of the Laws of 1897 and chapter 690 of the Laws of 1899, have been much discussed by the courts, and many and divergent opinions pronounced by different judges as to the character of the duty thereby cast upon justices of this court. The last and most searching analysis of the act last cited was made by Judge Vann in Re Davies, 168 N. Y. 89, 61 N. E. 118, 56 L. R. A. 855, who reached the conclusion that the act might be sustained because it was related by express terms to an action to be brought by the Attorney General in the interest of the people to suppress a monopoly.

In this particular, seemingly held essential to the validity of the act by the Court of Appeals, the charter provision in question is entirely wanting. Although the powers conferred by the act might be used in aid of a taxpayer's action, it bears no legal relation to it. The act does not in terms refer to a taxpayer's action authorized first in 1872, a year before the act in question was passed; the testimony obtained cannot be used as evidence in a taxpayer's action; the application for the order may be made as well by city officials, by virtue of their office, as by taxpayers; mechanical qualification of inspectors is not the proper subject of a taxpayer's action; one taxpayer may maintain an action, whereas it requires five to bring these proceedings; the act itself is part of the city charter; and the disposition of the testimony taken, with notice thereof to a city department, shows that the proceeding is intended to be a purely administrative proceeding and an adjunct to city administration.

The end and object of all civil judicial proceedings is the enforcement or protection of a right, or the redress or prevention of a wrong. So the Supreme Court of the United States in Gordon v. United States, 117 U. S. 697, refused to entertain an appeal from the Court of Claims because that court did not pronounce an enforceable judgment, but its decisions were practically advisory only.

But the fact that proceedings have such end and object does not alone make them judicial. This end, which we may for convenience call a judgment, must be reached in a judicial manner. There must be

parties, and opportunity to be heard, and the tribunal must proceed either to a determination of facts upon evidence or of law upon proved or conceded facts. When both these elements are present, there is a judicial proceeding.

[2] A proceeding may be of a judicial nature, and involve the exercise of judicial functions, but fall short of being a judicial proceed

ing. Such is the proceeding authorized by the statute under consideration. It does not result in any judgment or determination. It is simply an administrative investigation, and its sole validity is in its relation to the city government.

But I think it does not follow that the power cannot be conferred on a justice of this court. Our Constitution divides governmental powers into three branches. By its terms it confers one, the legislative, on the senate and assembly; another, the executive, upon the Governor and Lieutenant Governor; and it then continues and creates courts and provides for the exercise of judicial powers. Undoubtedly these governmental powers are distinct in their very nature. Their separation is essential to freedom, and a union of the three in one person or body leads to tyranny. These principles have been vigorously set forth by our Court of Appeals (People ex rel. Burby v. Howland, 155 N. Y. 270, 49 N. E. 775, 41 L. R. A. 838; Village of Saratoga Spgs. v. Saratoga Gas, etc., Co., 191 N. Y. 123, 83 Ñ. E. 693, 18 L. R. A. [N. S.] 713), but are nowhere more tersely expressed than in a resolution of the Circuit Court of the United States, composed of Chief Justice Jay and Justices Cushing and Duane, in refusing to perform as a court certain nonjudicial functions attempted to be cast upon it by Congress. The resolution is as follows:

"That by the Constitution of the United States the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on either. That neither the legislative nor the executive branches can constitutionally assign to the judicial any duties, but such as are properly judicial, and to be performed in a judicial manner." Footnote to Hayburn's Case, 2 Dall. 409, 1 L. Ed. 436.

[3] The resolution passed in 1792 is equally true to-day, and of our state as well as the United States Constitution. A purely legislative or executive function cannot be cast on the courts, for that would violate the provision of the Constitution vesting the legislative power in the senate and assembly and the executive power in the Governor. But this line of demarcation has never been so artificially drawn as to prevent assignment to justices of this court of duties which relate to their general powers, or which call for the exercise of judgment or of that peculiar knowledge and skill which are the result of judicial experience. Many duties of this character are exercised by justices. of the Supreme Court and judges of the County Court, instances of which are acknowledgments of deeds, adoption of children, appointment of commissioners of condemnation, approval of certificates of incorporation, and guardianship of children and of the insane. A justice who acts under section 1543 of the charter is called upon to exercise functions much more nearly approaching the judicial. He must determine whether the affidavit makes out a case under the statute; he must decide upon the relevancy of the evidence to the charges contained in the affidavit; and finally, in aid of the examination, he may punish for contempt-a power essentially judicial.

[4, 5] Although this proceeding itself cannot be called a judicial one, yet judicial methods are used, and judicial powers incidentally

invoked; and, bearing in mind the duty of the courts to sustain acts of the Legislature, if by any reasonable interpretation that can be done, I am led to the conclusion that the act casting on the justices of this court the power to order such examination does not violate either the letter or the spirit of the Constitution.

It is obvious that, without the authority of such a statute, no justice could call before him the heads of departments of the city government and private persons, to be questioned either in aid of the administration of the city government or to satisfy public curiosity. It is therefore a special statutory power, and can be exercised only "in such cases, under such circumstances, and in the manner in which the statute directs." Warren v. Union Bank of Rochester, 157 N. Y. 259, 51 N. E. 1036, 43 L. R. A. 256, 68 Am. St. Rep. 777. The affidavit on which the order is based must show the conditions under which the statute authorizes the proceedings to be brought. We are brought thus to a consideration of the meaning and scope of the act and an analysis of the affidavits.

The provision in question was passed in 1873, as part of an act entitled "An act to reorganize the local government of the city of New York." Section 109, chapter 335, Laws of 1873. The corruption of city officials and the looting of the city treasury by the so-called Tweed ring at that time is part of the history of the city of New York. The commissioner of accounts then had no power to compel the attendance of witnesses or to administer oaths or take testimony. Section 106 of the same act. This provision of the act, which was practically the charter of the city, was undoubtedly intended to vest somewhere the powers which were subsequently given to the commissioner of accounts by chapter 516 of the Laws of 1884, and the justices of the Supreme Court were selected as its depositories. It was intended to expose the acts of corruption and raids on the city treasury, then believed to be prevalent, and obviously not to investigate the propriety and wisdom of questions of a legislative nature pending for determination or action. The wording of the act is apt for this purpose. The examination is confined to alleged (i. e., alleged in the affidavit on which the order is based) wrongful diversion or misapplication of any moneys or fund, or any violation of the provisions of law, or any delinquency touching the office or the discharge or neglect of duty. To bring this case within the act, the affidavit must show these existing facts. The charging part of the affidavit is paragraph VII. It is as follows:

"The board of estimate and apportionment of the city of New York is about to cause said plans and profiles to be approved and said contract and deed to be executed, so as to create a contract between the city of New York and the said New York Central Railroad Company which will alienate lands and lands under water, water front, and other public places belonging to the city of New York, in violation of the statute, and will close streets and avenues and deed the fee thereof to said railroad company, in violation of statute; and said contract about to be executed by said board of estimate and apportionment in dereliction of their duty violates the statute of the state of New York in numerous other particulars, as set forth in the said affidavit of J. Bleecker Miller."