
    EMILY COUNTRYMAN, Respondent, v. HENRY P. NORTON, Executor, &c., Appellant.
    
      A justice of the Supreme Court cannot act as a referee — Const., art. 6, sec. 25— a party cannot waive the prohibition contained therekr — nvhen a case may be sent back to a referee after his term as a justice of the Supreme Court has ceased.
    
    In July, 1877, a claim against the estate of a deceased person was, pursuant to the statute, referred to J. L. Angle, Esq., to hear and determine. The trial was commenced on the 4th day of September, 1877, and continued by adjournments until December 22, 1877, when it was suspended without day. On December 20, 1877, the said J. L. Angle was appointed a justice of the Supreme Court, to fill a vacancy therein, and on December 22 he accepted the said office and entered upon and continued to discharge the duties thereof until the expiration of the term for which he was appointed, viz.: December 31, 1878.
    On August 10, 1878, the said J. L. Angle, as referee as aforesaid, made and filed his report in the case. Upon an appeal from an order denying a motion to vacate the report, on the ground that the referee was incompetent to act as such while holding the office of a justice of the Supreme Court.
    
      Belli, that the prohibition contained in sec. 25 of art. 6 of the Constitution, was absolute and peremptory, and prevented any justice of the Supreme Court from acting as a referee.
    That the facts that the trial of the action had been commenced before he was appointed a justice of the said court, and that he acted without malting any charge-for his services, did not relieve him from the said prohibition.
    That the provision could not be waived by any stipulation or acts on the part of the defendant.
    That as the referee had since ceased to be a justice of the Supreme Court, his report should be set aside, and either party should be allowed to proceed with the reference on the evidence and proceedings as they stood on the 22d day of December, 1877.
    
      Appeal from an order made at a Special Term, denying a motion made by tbe defendant to set aside tbe report of a referee.
    
      J. D. Decker, for tbe appellant.
    
      A. P. Butts, for tbe respondent.
   Talcott, P. J.:

Tbis is an appeal from an order made at tbe Monroe Special Term, on tbo 3d day of July, 1879, denying a motion made by tbe defendant to set aside tbe report of tbe referee in tbis case.'

Tbe case was a reference of a claim made against tbe estate of a deceased person wbicb bad been rejected by tbe defendant as tbe executor of tbe deceased, and wbicb in July, 1877, was referred to J. L. Angle, Esq., to bear and determine, witb tbe approval of tbe surrogate of Monroe county, pursuant to tbe statute in sucb case provided, and on wbicb an order for sucb reference was entered. Tbe trial of tbe action commenced about tbe 4th day of September, 1877, before said referee, and was continued by adjournments from time to time, until December 22J, 1877, when tbe further trial of tbe action was suspended without day. On tbe 20th day of December, 1877, by reason of a vacancy wbicb bad occurred in the office of Justice of tbe Supreme Court for tbe Seventh Judicial District, occasioned by tbe death of tbe late Judge Rawson, tbe said referee, James L. Angle, Esq., was appointed by tbe Governor a justice of tbis court.

On tbe 22d day of December tbe said referee accepted tbe said appointment, and duly qualified by taking tbe constitutional oath of office; and on that day entered upon tbe duties of tbe office, and continued to discharge tbe same during tbe continuance of sucb appointment. On tbe 10th day of August, 1878, tbe said James L. Angle made a decision of tbe case as sucb referee, and bis report was filed August 14, 1878, and tbe motion for tbe order now appealed from was made upon tbe ground that tbe said referee was incompetent to act as sucb whilst bolding the office of a justice of tbe Supreme Court, under tbe twenty-first section of tbe sixth article of tbe constitution. That portion of tbe section of tbe constitution referred to is as follows: “Nor shall any judge of tbe Court of Appeals, justice of the Supreme Court, or a judge of a court of record in the cities of New York, Brooklyn or Buffalo practice as an attorney or counsellor in any court of record in this State, or act as referee.”

. This is a direct and express prohibition in the fundamental law prohibiting either of the officers named from acting as a referee whilst he holds such office.

It seems to be entirely plain in its meaning, and requiring and permitting no resort to any extraneous circumstances to guide us in its interpretation.

The language being unambiguous, and the words plain and clear, the intention of the people in adopting the instrument is to be sought, therefore, in the language of the instrument itself, in order to ascertain the intention of the framers of it. It is peculiarly true of the fundamental laws called written constitutions, adopted by the people at large, that, if the provision in question is plain and clear on the face of it, it is to be presumed that the language was used in the ordinary acceptation, and is to be literally interpreted, and exceptions are not to be engrafted on it by any speculation as to the reasons which have induced its adoption, in order to defeat the literal interpretation of its provisions. And that which fairly cannot be held to be within the literal signification of its provisions, cannot be held to be included within it; nor can exceptions be made to those provisions which the language used does not fairly warrant.

It is safer for the judicial department to follow the plain intent and obvious meaning of the provisions of a constitution rather than to speculate as to what the intent of its framers might have been in view of the emergency which has arisen, had such emergency been presented to them.

This same provision of the constitution has been under adjudication by the Court of Appeals in Settle v. Van Evrea (49 N. Y., 281), in which case the above principles of interpretation are fully recognized and applied to the provision in question. In that case, the court, per Allen, J., states the rule to be that: “ Where the terms of a written constitution are clear and unambiguous, and have a well-understood meaning, effect must be given to the intent as declared by its framers, and adopted by the people as the organic law of the State, . . . and that it would be dangerous in the extreme to extend the operation and effect of a written constitution by construction beyond the fair scope of its terms, merely because a restricted and more literal interpretation might be inconvenient or impolitic, or because a case may be supposed to be to some extent within the reasons which led to the introduction of some particular provision, plain and precise in its terms.”

In the case of Settle v. Van Evrea, the court held that the restriction against certain judicial officers acting as referees did not apply to “Commissioners of Appeals,” because the clause in the Constitution under consideration did not by its terms literally include those officers. Though the same reasons must have existed for including the “commissioners” in the restrictions which were applicable to the judges of the Court of Appeals proper. The same rules of construction must apply to the same section of the Constitution when it is sought to exempt judicial officers who are plainly included within its terms by speculating as to the reasons which led to the introduction of the section, as when it is sought to extend it to officers not literally included within the fair meaning of the terms used.

We cannot, therefore, agree with the opinion of the learned justice who made the order appealed from, delivered at the Special Term, that the provision' of the Constitution in question can be limited in its effect, and held to apply only to a prohibition against the judicial officers named in the section from recewmg fees as referees.

It seems to us if such was the intention of the provision of the Constitution, as the subject-matter was simple and easy of comprehension, it could and would have been expressed in apt words to indicate an intention to exclude the judicial officers named in it from receiving fees when acting as referees, instead of prohibiting them altogether from acting as referees. It is conceded by the learned justice who made the order appealed from, that the constitutional provision in question, if it is to receive a literal .interpretation, is broad enough to prohibit the referee from further acting as such after he became a justice of the Supreme Court, and we think it must receive such interpretation.

It is claimed by tbe plaintiff, in opposition to tbe motion, that a stipulation has been signed by tbe attorneys for tbe respective parties, by wbicb it was agreed on both sides to waive every legal and constitutional objection” to tbe power and jurisdiction of tbe referee that might arise from tbe fact that be bad been appointed a justice of tbe Supreme Court in wbicb tbe action was pending, after his appointment as referee, and also that sundry proceedings bad been taken on tbe part of tbe defendant wbicb likewise bad tbe effect of waiving such objection.

It is true that a party to an action may directly, or impliedly, waive a constitutional provision intended solely for tbe benefit of himself, and others situated in like circumstances. But tbe provision in question was obviously founded in pubbc policy, and not for tbe sole protection and benefit of those suitors who are situated in like circumstances with tbe defendant in this suit. Tbe defendant furthermore claims that bis eest/wi que trusts, tbe heirs of tbe decedent, refuse to be bound by any such waiver, or to allow a judgment thus obtained to be charged against tbe estate. We do not think tbe provision of tbe Constitution in question is one wbicb could be waived by tbe defendant, and therefore that all proceedings bad by and before tbe referee after be took tbe oath of office as a justice of this court are cormn non judiee, and void.

Tbe referee bas since ceased to be a justice of this court, tbe term for wbicb be was appointed having expired, and it is competent for tbe referee now to proceed with tbe case, tbe proofs not having been closed, or tbe case submitted to him until after bis official term bad commenced. So that tbe evidence already taken while be was lawfully acting as a referee can be retained in tbe case, together with such other evidence as may be necessary, or wbicb either party may desire, under tbe direction of tbe referee, to introduce.

Tbe motion to set aside tbe report of tbe referee, such report having been made during tbe period in wbicb be was incompetent to act as referee, should have been granted. But as both tbe attorneys seem to have acted under a misapprehension of tbe effect of tbe constitutional provision, it is not a case for imposing tbe costs upon either party.

Tbe order appealed from is reversed, and tbe report of the referee, and all subsequent proceedings, set aside, with costs to neither party, and with leave to either party to proceed with tbe reference on tbe evidence and proceedings as they stood on tbe 22d day of December, 1877.

Present — Talcott, P. J., Smith and Hardin, JJ.

Ordered accordingly.  