The opinion
GOODRICH, P. J. (dissenting).
I agree with Mr. Justice HIRSCHBERG when he says that, assuming it to be true that the county of Westchester contained a population exceeding 120,000 when Mr. Silkman was elected surrogate, “he was by the express terms of the Constitution at once suspended from practice as effectively as he could possibly be by any order of this court.” If the population of Westchester county exceeded 120,000 when Mr. Silk-man was elected surrogate, and he continued thereafter to practice as an attorney or counselor in any court of record in this state, he disobeyed the fundamental'law of the state, and, in my opinion, is guilty of malpractice, the definition of which is given in standard dictionaries as follows: Webster defines it as “evil practice; illegal or immoral conduct; practice contrary to' established rules.” The Century defines it as “misbehavior; evil practice; practice contrary to established rules.” The Standard defines it as “improper or immoral conduct; objectionable practice.” Worcester defines it as “practice contrary to rules.”
I do not agree with Mr. Justice HIRSCHBERG that if Mr. Silkman has violated the inhibition of the Constitution he has offended as surrogate and not as attorney. True it is that for any breach of the constitutional inhibition, which by his official oath he swore he would support, he might be impeached in his office of surrogate; but it is not his acting as surrogate, but his acting as attorney and counselor, that we are considering. Over the former we have no jurisdiction. Over the latter we have jurisdiction under section 67 of the Code of Civil Procedure, as well as by the inherent power of the court, and by proper method may suspend him from practice or remove him from office as attorney and counselor.
Can it be doubted that, if Mr. Silkman were to be impeached as surrogate for disobedience of the constitutional provision, this court could suspend or disbar him on that account? It seems to be conceded by the counsel of Mr. Silkman that since his election as surrogate he has practiced as attorney and counselor in courts of record in this state. It is conceded that by the state census of 1892 Westchester county contained 130,360 inhabitants, of whom 116,481 were citizens, and 13,879 were aliens.
*1042 Mr. Endlich, in his Interpretation of Statutes, § 2, says;
“The first and most elementary rule of construction is that it is to be assumed that the words and phrases are used in their technical meaning if they have acquired one, and in their popular meaning if they have not.”
At section 507 he says:
“Like other instruments, a constitution is entitled to a construction as nearly as may be in accordance with the intent of its makers, who, in this case, are the people themselves. Whilst, therefore, phrases that have acquired a settled meaning, thoroughly understood, not only in legal parlance, but in common acceptation, are to be given that significance when used in a constitution, * * * where a phrase has both a technical and a popular meaning the former, which would ordinarily prevail in a statute, will be discarded for the latter in a constitutional provision. Indeed, the language of the Constitution, owing its whole force to its ratification by the people, is always to be taken in its common acceptation—its plain, ordinary, natural, untechnical sense. * * * It follows that where the words of a constitutional provision, taken in their ordinary sense and in the order of their grammatical arrangement, embody a definite meaning, which involves no absurdity or conflict with other parts of the same instrument, the meaning thus apparent on the face of the provision is the only one that can be presumed to have been intended, and there is no room for construction.”
With this standard authority in mind, let us consider the meaning of article 6, § 20, of the Constitution. The word “population,” there used, does not seem to me to be synonymous with the words “inhabitants excluding aliens,” in article 3. It may be synonymous with “inhabitants,” but the use of the words “excluding aliens” shows that inhabitants include aliens. Hence we may not exclude aliens in construing section 20, where the word “population” is used without any limiting words.
The words “inhabitants excluding aliens” are used in article 3, in reference to the exercise of political powers, while in article 6, § 20, the word “population” is used with reference to judicial functions. In the exercise of political power aliens are not entitled to consideration, as they have no participation therein, but their rights are to be regarded in respect of judicial functions which may come to have jurisdiction over their property. I again refer to the standard dictionaries for.the ordinary, untechnical meaning of the word “population”; that is, its common acceptation. Webster’s, Worcester’s, the Century, and Standard dictionaries substantially agree in defining “population” as “the whole number of people or inhabitants in a country or district.” In my opinion, the word “population” in article 6, § 20, includes all individuals resident in a county; and, as it appears.by the census that the number of such persons in the county of Westchester is more than 120,000, the section forbids the surrogate of that county to' practice as an attorney or counselor in any court of record of this state, or to act as referee.
It remains only to consider whether in the present proceeding an order may be made suspending Mr. Sillcman from practice. I find adequate power in section 67 of the Code of Civil Procedure, which provides that an attorney who has been guilty of malpractice may be suspended from practice or removed from office by the Appellate Division of the Supreme Court. There is no prerequisite of motion *1043 to the court. The court may act of its own motion. The attention of the court having been called to the matter, we are called upon to act.