Per Curiam.
Under date of December 16,1927, the Governor of the State, pursuant to section 34 of the Public Officers Law, directed Townsend Scudder, one of the justices of the Supreme Court in and for the Second Judicial District, to take evidence as to certain charges against Maurice E. Connolly, borough president of the borough of Queens, and to report to the Governor the evidence taken in the proceeding with the findings and material facts deemed [593]*593by him to be established in connection with such charges, together with his conclusions thereon. In accordance with section 34 of the Public Officers Law, Mr. Justice Scudder caused a notice to be served upon said Connolly that evidence would be taken in the proceeding at a hearing to be held before him at the County Court House, Long Island City, on the 1st day of February, 1928. From January 5 to January 18, 1928, Mr. Justice Scudder issued numerous subpoenas requiring persons and corporations to appear before him at his chambers prior to February 1, 1928, to attend an inquiry and give evidence in the matter of the said charges. Pursuant to such subpoenas, about forty witnesses attended before said justice at his chambers. It is conceded these witnesses were examined under oath as to the merits of the charges. Said Connolly was not notified of these proceedings, nor was he present thereat in person or by counsel. Upon these facts, an alternative order of prohibition is sought to restrain Mr. Justice Scudder, not only from continuing the examination of witnesses in the absence of said Connolly, but also from acting further in the proceeding.
Article 3, section 1, of the Constitution of the United States provides: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
It has been held by the United States Supreme Court (Gordon v. United States, 117 U. S. 697; United States v. Ferreira, 13 How. [U. S.] 40), as stated by Blackmar, J., in Matter of Mitchel v. Cropsey (177 App. Div. 663): “ 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 * * * refused to entertain an appeal from the Court of Claims because that court did not pronounce an enforcible judgment, but its decisions were practically advisory only.”
It thus appears that in order to constitute a proceeding a judicial one within the meaning of the Federal Constitution, it is necessary that there be a final adjudication which may be enforced. As the Federal government is divided, so is the State government divided into three departments, each separate and distinct, and designed to operate as a check upon the others. (Matter of Davies, 168 N. Y. 89.)
Article 6, section 19, of the State Constitution provides in part: “ The judges of the Court of Appeals and the justices of the Supreme Court shall not hold any other public office or trust, except that they shall be eligible to serve as members of a Constitutional Con[594]*594vention.” In the face of the purpose of the division of State government into these three separate and distinct divisions and the provision of the State Constitution last quoted, it has been held that the issue of a call by a justice of the Supreme Court upon the State militia in case of a riot is the exercise of judicial power. (People ex rel. Welch v. Bard, 209 N. Y. 304.) The theory upon which the case was really decided was that there was a decision made upon the facts as to the necessity of the call. In other words, there was a determination which gave life to the act to be done. Upon the basis of either of the foregoing rules, it must be held that Mr. Justice Sctjdder is not acting in a judicial proceeding. Here there will be no determinative adjudication or decision. There is to be a finding but it is only advisory. The justice is, therefore, transgressing constitutional limitations unless (1) it can be said that his duties are merely “ transient, occasional or incidental,” as was the ruling in People ex rel. Washington v. Nichols (52 N. Y. 478), or (2) although the proceeding may not be judicial, it partakes of the nature thereof and the power is conferred upon a judge.
As to alternative (1) to apply the rule stated would mean that a judicial officer, acting as the agent of the executive, was not holding another public office or trust. This rule should not be extended to a proceeding of such vital importance and serious consequences. It is dangerous doctrine which permits exception to sound principle for the sake of a beneficent end. This is happening far too frequently these days. The evasion of such principle does far more harm than the evil sought to be cured or wrong to be remedied. If these proceedings were before the Governor, he would make a decision. That, in a sense, would be a judicial act, but not - an invasión of constitutional judicial prerogative' because it is in the course of an executive act by an executive. The same may be said of legislative investigations and proceedings. Here, however, -upon the basis of the alternative under discussion, the judge is acting in the domain of the executive, and is authorized as a commissioner to take testimony for the Governor, as in United States v. Ferreira (13 How. [U. S.] 40) district judges, who had to decide upon- the validity of claims and, if in favor of claimants, to report to the Secretary of the Treasury, who was to determine if they should be paid, were held not to act as judges but as commissioners to adjust claims and report thereon. But there is no provision in -the Federal Constitution which prevents a judge from holding any other office or trust.
--As to the second alternative-: While this proceeding may not be a judicial proceeding, judicial methods are used and judicial powers [595]*595incidentally invoked. (Matter of Mitchel v. Cropsey, 177 App. Div. 663.) There is notice to the accused, subpoenas are issued, oaths administered to witnesses, their examination had, counsel present, the power of the county may be called upon to execute process, and findings of the material facts deemed to be established are made to advise the executive. The power so conferred on a justice of the Supreme Court is conferred upon him as a judge. (Matter af Mitchel v. Cropsey, supra.) Thus, Mr. Justice Scudder’s appointment was as a judge to conduct these proceedings.
Since Mr. Justice Scudder is acting as a judge, his powers must be exercised in the manner in which the statute directs. (Matter of Mitchel v. Cropsey, supra.) The justice is not in the position of the executive, against whose actions, were he to conduct this proceeding, no direct attack could be made in the courts. Charges against a borough president are, pursuant to statutory provision, to be made and heard the same as charges against a sheriff. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 382, as amd. by Laws of 1923, chap. 780; Id. § 122.)
Article 10, section 1, of the Constitution, dealing with the removal of varioms officers, including sheriffs, provides: “ The Governor may remove any officer, in this section mentioned, within the term for which he shall have been elected; giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense.”
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Per Curiam.
Under date of December 16,1927, the Governor of the State, pursuant to section 34 of the Public Officers Law, directed Townsend Scudder, one of the justices of the Supreme Court in and for the Second Judicial District, to take evidence as to certain charges against Maurice E. Connolly, borough president of the borough of Queens, and to report to the Governor the evidence taken in the proceeding with the findings and material facts deemed [593]*593by him to be established in connection with such charges, together with his conclusions thereon. In accordance with section 34 of the Public Officers Law, Mr. Justice Scudder caused a notice to be served upon said Connolly that evidence would be taken in the proceeding at a hearing to be held before him at the County Court House, Long Island City, on the 1st day of February, 1928. From January 5 to January 18, 1928, Mr. Justice Scudder issued numerous subpoenas requiring persons and corporations to appear before him at his chambers prior to February 1, 1928, to attend an inquiry and give evidence in the matter of the said charges. Pursuant to such subpoenas, about forty witnesses attended before said justice at his chambers. It is conceded these witnesses were examined under oath as to the merits of the charges. Said Connolly was not notified of these proceedings, nor was he present thereat in person or by counsel. Upon these facts, an alternative order of prohibition is sought to restrain Mr. Justice Scudder, not only from continuing the examination of witnesses in the absence of said Connolly, but also from acting further in the proceeding.
Article 3, section 1, of the Constitution of the United States provides: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
It has been held by the United States Supreme Court (Gordon v. United States, 117 U. S. 697; United States v. Ferreira, 13 How. [U. S.] 40), as stated by Blackmar, J., in Matter of Mitchel v. Cropsey (177 App. Div. 663): “ 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 * * * refused to entertain an appeal from the Court of Claims because that court did not pronounce an enforcible judgment, but its decisions were practically advisory only.”
It thus appears that in order to constitute a proceeding a judicial one within the meaning of the Federal Constitution, it is necessary that there be a final adjudication which may be enforced. As the Federal government is divided, so is the State government divided into three departments, each separate and distinct, and designed to operate as a check upon the others. (Matter of Davies, 168 N. Y. 89.)
Article 6, section 19, of the State Constitution provides in part: “ The judges of the Court of Appeals and the justices of the Supreme Court shall not hold any other public office or trust, except that they shall be eligible to serve as members of a Constitutional Con[594]*594vention.” In the face of the purpose of the division of State government into these three separate and distinct divisions and the provision of the State Constitution last quoted, it has been held that the issue of a call by a justice of the Supreme Court upon the State militia in case of a riot is the exercise of judicial power. (People ex rel. Welch v. Bard, 209 N. Y. 304.) The theory upon which the case was really decided was that there was a decision made upon the facts as to the necessity of the call. In other words, there was a determination which gave life to the act to be done. Upon the basis of either of the foregoing rules, it must be held that Mr. Justice Sctjdder is not acting in a judicial proceeding. Here there will be no determinative adjudication or decision. There is to be a finding but it is only advisory. The justice is, therefore, transgressing constitutional limitations unless (1) it can be said that his duties are merely “ transient, occasional or incidental,” as was the ruling in People ex rel. Washington v. Nichols (52 N. Y. 478), or (2) although the proceeding may not be judicial, it partakes of the nature thereof and the power is conferred upon a judge.
As to alternative (1) to apply the rule stated would mean that a judicial officer, acting as the agent of the executive, was not holding another public office or trust. This rule should not be extended to a proceeding of such vital importance and serious consequences. It is dangerous doctrine which permits exception to sound principle for the sake of a beneficent end. This is happening far too frequently these days. The evasion of such principle does far more harm than the evil sought to be cured or wrong to be remedied. If these proceedings were before the Governor, he would make a decision. That, in a sense, would be a judicial act, but not - an invasión of constitutional judicial prerogative' because it is in the course of an executive act by an executive. The same may be said of legislative investigations and proceedings. Here, however, -upon the basis of the alternative under discussion, the judge is acting in the domain of the executive, and is authorized as a commissioner to take testimony for the Governor, as in United States v. Ferreira (13 How. [U. S.] 40) district judges, who had to decide upon- the validity of claims and, if in favor of claimants, to report to the Secretary of the Treasury, who was to determine if they should be paid, were held not to act as judges but as commissioners to adjust claims and report thereon. But there is no provision in -the Federal Constitution which prevents a judge from holding any other office or trust.
--As to the second alternative-: While this proceeding may not be a judicial proceeding, judicial methods are used and judicial powers [595]*595incidentally invoked. (Matter of Mitchel v. Cropsey, 177 App. Div. 663.) There is notice to the accused, subpoenas are issued, oaths administered to witnesses, their examination had, counsel present, the power of the county may be called upon to execute process, and findings of the material facts deemed to be established are made to advise the executive. The power so conferred on a justice of the Supreme Court is conferred upon him as a judge. (Matter af Mitchel v. Cropsey, supra.) Thus, Mr. Justice Scudder’s appointment was as a judge to conduct these proceedings.
Since Mr. Justice Scudder is acting as a judge, his powers must be exercised in the manner in which the statute directs. (Matter of Mitchel v. Cropsey, supra.) The justice is not in the position of the executive, against whose actions, were he to conduct this proceeding, no direct attack could be made in the courts. Charges against a borough president are, pursuant to statutory provision, to be made and heard the same as charges against a sheriff. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 382, as amd. by Laws of 1923, chap. 780; Id. § 122.)
Article 10, section 1, of the Constitution, dealing with the removal of varioms officers, including sheriffs, provides: “ The Governor may remove any officer, in this section mentioned, within the term for which he shall have been elected; giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense.”
Under section 34 of the Public Officers Law, where the Governor does not take the evidence in any proceeding for a removal, he may direct the evidence to be taken before a justice of the Supreme Court. The Governor may direct such judge, as was required in this case, to report to him the evidence and the findings by the judge of the material facts deemed by the judge to be established. The judge may require witnesses to attend before him, and issue subpoenas for such witnesses. It will be noticed that the act provides that the evidence is to he taken before a justice of the Supreme Court, and not that he conduct the examination. It is further provided that the Governor may direct the Attorney-General or the district attorney of the county to conduct the examination into the truth of the charges. It is also provided that at least eight days’ written notice of the time and place of the examination shall be given to the officer proceeded against. It thus clearly appears that the Constitution and the statutory provision require that there be a hearing. A hearing imports the presence of the accused, with full opportunity to cross-examine witnesses produced to support the charges, the right to be represented by counsel and to present witnesses to refute the charges. (See People ex rel. [596]*596Mayor v. Nichols, 79 N. Y. 582.) The present method of conducting this proceeding is in violation of constitutional and statutory limitations. Judges, as others, are not above the law. Such a violation may be restrained by an order of prohibition. (Matter of Mitchel v. Cropsey, supra.) There is no other judicial remedy.
It is also urged that Mr. Justice Scudder has disqualified himself from proceeding further in this matter because of bias and prejudice created out of the fact that the proceeding is being conducted on the merits behind closed doors in the absence of the accused. Bias and prejudice, such as are here claimed, may be the basis of an attack upon a judicial determination by appeal, but they do not involve the question of jurisdiction. Prohibition may only be invoked where there is an exercise of power beyond jurisdiction. (33 C. J. 998; People ex rel. Devery v. Jerome, 36 Misc. 256, O’Gorman, J., writing; Davis v. Seaward, 85 id. 210, Judge Crane, then a Supreme Court justice, writing; affd., 171 App. Div. 963.)
The motion should, therefore, be granted to the extent of commanding the Hon. Townsend Scudder, a justice of the Supreme Court, to desist and refrain, until the further direction of this court, from any further proceedings in the matter of charges against the petitioner by way of taking and hearing the evidence of witnesses, except at a hearing at which the petitioner is afforded an opportunity of being present. In all other respects the petition is denied.
Lazansky, P. J., Young and Seeger, JJ., concur; Kappee, J., concurs in result in a separate memorandum; Carswell, J., concurs in the result in part, in a separate memorandum, and votes to deny the application in its entirety.