People ex rel. Childs v. Extraordinary Trial Term of the Supreme Court

Page, J.: This court recently granted an absolute writ of prohibition restraining the holding of an Extraordinary Term of the Supreme Court in the county of New York (Matter of McIntyre v. Sawyer, 179 App. Div. 535). While the facts in that case are not identical with those of the case at bar, they are so strikingly similar that I am unable to distinguish them in principle. In the McIntyre case the Governor’s order, as in this case, directed notice to be published twice in each of two daily newspapers named therein. It was published only twice in one, while the notice of an Extraordinary Term to be held at the same time by another justice, whose designation had been revoked, was published twice in the other newspaper. In the case at bar the order required that the notice should be published once in each week for two successive weeks in two newspapers designated therein. The notice was so published in one of the newspapers, and was published twice in one week in the other. The order of the Governor was disregarded in both cases. In both cases the formal and deliberate action of the Governor and his secretary “ were performed in the exercise of the highest executive prerogative, with strictest regard for statutory provisions.” Yet we held in the McIntyre case that the error of the printer, or of some one other than an official, nullified the Governor’s order and “ that neither the justice designated nor any other justice has jurisdiction to proceed with the trial of said, action.” If the manner of giving the notice is of no importance and the Governor’s order can be disregarded so long as the order itself conforms to the statute, I admit that the defective publication in the instant case is of no importance and the objection merely technical. But it also follows that the objection in the McIntyre case was the “ merest technicality.” Nor does the fact that in the McIntyre case the matter was called to the attention of the court before any proceedings were had, and that in the case at bar it was not called to our — 831 — attention until numerous other trials were had at the Extraordinary Term, distinguish the cases. If the court was not a legal court, and we were right in prohibiting it, in limine, from exercising its judicial functions, it would not have become a legal court, merely because it had assumed to act. Its assumption of authority did not give it an authority not vested in it originally. Moreover, we are not now reviewing its past acts. At the beginning of this action the authority of the court to proceed further is challenged. A writ of prohibition deals with the future and not with the past. The court can be halted in the course of the term as well as at the beginning. This court can say, “You shall not continue to exercise a jurisdiction that you do not possess,” as well as, “You shall not commence to exercise it.” If our former decision was wrong, we should frankly say so. If it was right, we should follow it. In my opinion, the decision was right and must be followed. The requirement that “ the sittings of every court within this State shall be public, and every citizen may freely attend the same ” (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 4), does not merely mean that the doors are to be opened to all when the court is in session, but also that the general public shall be advised, of the time and place of the holding of the terms of the courts. The Legislature has provided how the time and place at which the regular Trial and Special Terms of the Supreme Court shall be held (Judiciary Law, §§ 84, 151), and for publication thereof (Executive Law [Consol. Laws, chap. 18; Laws of 1909, chap. 23], §§ 33, 82); in this manner insuring publicity. The Legislature having taken care that due publication should be made each year of the time and place of holding regular terms, although as a matter of fact these terms are held with consistent regularity at the corresponding time and the same place year after year, it certainly intended that an extraordinary term of the court should have some publicity given to the time and place at which it is to be held. The Governor is given power to appoint one or more extraordinary Special or Trial Terms of the Supreme Court, designating the time and place of holding the same and naming the justice who shall hold or preside at such term. It — 832 — is then provided that the Governor “ must give notice of the appointment in such manner as, in his judgment, the public interest requires.” (Judiciary Law, § 153.) It is noteworthy that it is made the duty of. the Governor to give the notice, and not merely for the Governor to prescribe the manner in which it is to be given; hence, his duty is not ended when he prescribes the manner. For unless the notice be given in that manner, the Governor has not given the notice that the statute requires. It is to be borne in mind that this duty is not one that is inherent in the Executive, but is a power over a co-ordinate branch of the government that is given by statute, and the power must be executed in strict accordance with the statute. He cannot delegate the power to others. Therefore, when he declares that the public interest requires notice shall be given by publication in a certain manner, and notice is not so given, the Governor has failed to give the notice required by the statute, and a court held at an extraordinary term in pursuance of such a notice is not a de jure court. The State Constitution prescribes that “ no person shall * * * be deprived of life, liberty or property without due process of law.” (Art. 1, § 6.) “ That is ‘ due process of law ’ within the meaning of these words, which affords to every citizen the equal protection of the laws, and in case of accusation of crime, the right of trial by jury before one of its duly constituted tribunals having jurisdiction of the crime, under a procedure which the State prescribes.” (Matter of Buchanan, 146 N. Y. 264, 271. See, also, People v. Johnson, 185 id. 219, 228.) Therefore, when a person is brought before a court not duly constituted, he has the right to demand that he shall not be tried by such a court. The Legislature having prescribed how an Extraordinary Term of the court may be constituted, we should give effect to the statute and not dismiss its requirements as unnecessary of observance. It is our duty to enforce the statute as we find it, and not substitute our judgment for that of the Legislature as to what is or is not essential in the way of notice. What notice is essential is to be determined by the Governor, and his ' decision is not subject to our review. (People ex rel. Saranac Land & Timber Co. v. Supreme Court, 220 N. Y. 487.) We, — 833 — therefore, cannot now say that the notice which he prescribed should be given was not essential. Presiding Justice Clarke cites a number of cases in this and other States in which the courts have affirmed judgments rendered at terms of court thus irregularly constituted and convened, and argues therefrom that the courts of this State treat these statutory requirements as directory, and that a disregard of them is a mere technicality of which a defendant cannot take advantage, and considers this as the more enlightened and progressive view. In my opinion, these cases show no change in the law, nor are they authorities for our guidance in the instant case, for the reason that in the case cited by him in this and the other States, with two exceptions, the objection was first taken after a judgment had been rendered, and in those two cases, while the objection was taken in limine, the exception was considered on appeal after final judgment. Where the objection is taken at or before the commencement of the trial it has always been given serious consideration. (Northrup v. People, 37 N. Y. 203; Stockslager v. United States, 116 Fed. Rep. 590; McMillan v. City of Gadsden, 39 So. Rep. 569; People ex rel. Orman v. Riley, 16 Cal. 186; Toler v. Commonwealth, 94 Ky. 529; Flanagan v. Borg, 64 Minn. 394; Stovall v. Emerson, 20 Mo. App. 322.) The reason why the objection made after judgment is not considered of much merit unless the defendant can show that in some manner he has been deprived of a substantial right is twofold: First. If the defendant thinks proper, instead of moving for a writ of prohibition, to proceed to trial without setting up the objection, and is defeated, the objection comes too late, not that acquiescence conferred jurisdiction, but the court, considering the conduct of the party and the importance of making an end to litigation, would decline to interpose except upon an irresistible case. Such was the recognized rule of the common law. (Mayor of London v. Cox, L. R. 2 H. L. 239, 282.) Second. Where a court is held by a judge authorized to hold it, and at a place where the court legally could be held, it is a defacto court, although it was defectively organized so that it was not a de jure court. As with all other de facto bodies or officers, the acts done, the things accomplished, upon the principles of policy and justice, will be held valid — 834 — and binding. But such a court, body or officer may by appropriate proceedings be prohibited in advance from exercising the powers that should only be exercised by a court, officer or body de jure. The writ of prohibition is the appropriate remedy to prevent the acts of a court that may be such de facto but is not de jure. (Quimbo Appo v. People, 20 N. Y. 531; People ex rel. Jerome v. General Sessions, 185 id. 504, 506; Matter of Metz v. Maddox, 189 id. 460; People v. Nugent, 57 App. Div. 542; Matter of McIntyre v. Sawyer, supra.) Upon the ground that the court so far held at this Extraordinary Term was a de facto court, I agree with Presiding Justice Clarke that the grand jury summoned by it was a de facto grand jury and the indictments found by it are valid, and that none of the formal court proceedings heretofore had can be successfully challenged. The relator also asks that the writ of prohibition issue on the ground that no grand jury has jurisdiction to return an indictment, nor has any court jurisdiction to entertain a criminal action, against the relator on the matters therein set forth. The indictment against the relator set forth facts tending to show violatipns of section 546 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap." 22], as amd. by Laws of 1910, chap. 429). Upon the back of the indictments reference is made to section 751 of the Penal Law, as well as section 546 of the Election Law, the inference being that by violating section 546 of the Election Law, section 751 of the Penal Law became operative. Section 751 of the Penal Law is entitled: “Misdemeanors at, or in connection with, political caucuses, primary elections, enrollment in political parties, committees, and conventions.” Not one of its thirteen subdivisions refers to any act done or committed with reference to the general election. It is not open to discussion that section 751 refers only to primary elections and conventions, or activities with respect to a nomination to office. (People v. Willett, 213 N. Y. 368. See exception in Penal Law, § 750.) It appears from the facts alleged in the indictment that the relator was charged with acts violative of the “ Corrupt Practices Act ” (Election Law, art. 16, as renum. from art. 20 by Laws of 1913, chap. 800). For violations of that — 835 — article there is provision made for a civil proceeding to be instituted by the presentation by the Attorney-General, district attorney, a candidate voted for at the election, or by any five qualified voters who voted at the election, of a written petition setting forth any failure or failures to comply with the provisions of that article, the facts showing such failure or failures, and the names of the person or persons, or committee or committees, charged with such failure or failures. (§§ 550, 551.) Upon presentation of such petition and giving an undertaking, the court or justice is required forthwith to issue an order to show cause, which must be personally served upon the person or persons named in such petition, or left at his or their last known place of residence. (§ 552.) “ Upon the return of the order to show cause provided for in section five hundred and fifty-two,' the court, or justice, shall immediately, and in such manner as the court or justice shall direct, and without respect to any technical requirement, inquire into the facts and circumstances and into such violations of,' or failure to comply with, the provisions of' this article, as may be alleged in any such petition, or into such other facts and circumstances relative to any such election or to any contribution or expenditure made in connection therewith, which at any time, whether before or during the continuance of such inquest, the court or justice holding such inquest shall deem necessary to secure compliance with the provisions of this article or to punish for a violation thereof. Such other persons as the court, or justice, shall deem necessary or proper to join or bring in as parties to the said proceeding in order to make its order, judgment or writs effective, may be joined as parties in such manner and upon such notice as said court or justice shall direct.” (§ 554.) The Attorney-General, a district attorney, or some person designated by either, or by the court or justice, shall attend the inquest and examine the witnesses, and the persons or committees by or against whom the proceeding is brought shall have the right to appear by counsel at the inquest, produce evidence, and examine and cross-examine witnesses in their own behalf. Ample power to issue subpoenas for witnesses and for the production of books and papers and to punish for a failure to obey is given, and no person shall be excused — 836 — from attending and testifying or from producing any books, papers or other documents, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to convict him of a crime, or subject him to a penalty or forfeiture. (§§ 557, 558, 559.) The act provides for a judgment to be rendered by the court or justice. If it shall appear that the failure to act or the act done was without willful intent to defeat the provisions of this article, it shall require the filing of a statement or an amended statement, so that the same shall be true and complete. If, however, the failure to act or the act done was due to a willful intent to defeat the provisions of this article, the person or persons, or committee or committees, shall be liable to a fine not exceeding $1,000 or imprisonment for not more than a year, or both. If it shall appear that the act was not violated, judgment is to be given against the applicants and in favor of those proceeded against for costs and disbursements to be taxed by the court or justice. (§ 560.) I have referred thus extensively to the provisions of the act to show that a full and complete remedy is provided by the terms of the act for any and every violation of the act by a civil proceeding. It is well settled that where a statute creates a new offense and prescribes a particular penalty and mode of proceeding, that penalty alone can be enforced, and in the manner prescribed by the statute. It is exclusive of all other remedies. Chief Judge Church, speaking for the court in People v. Hislop (77 N. Y. 331), said (at p. 333): “ When a statute creates a new offence, and makes that unlawful which was lawful before, and prescribes a particular penalty and mode of proceeding, that penalty alone can be enforced. The offence in such case is not indictable (People v. Stevens, 13 Wend. 341; People v. Brown, 16 id. 561; Rex v. Wright, 1 Burr. 543).” “ The intent of the Legislature to elevate an act to the importance of a crime cannot be imputed by loose inferences and doubtful implications, but must be made to appear with reasonable certainty. We may guess that the Legislature intended to make all prohibited acts criminal offences, but it is impossible to so affirm with any degree of certainty, and the fact that they did not so declare is indicative that they did not so intend” (p. 335). — 837 — Prior to the enactment of the Corrupt Practices Act in 1906 (Laws of 1906, chap. 502, adding to Election Law [Gen. Laws, chap. 6; Laws of 1896, chap. 909], art. 9. Amd. by Laws of 1907, chap. 596) there was no statutory requirement for the performance of the acts therein prescribed, no inhibition of the acts therein prohibited. A violation thereof constituted a new offense. Hence, the only penalty for a violation thereof is that prescribed by the statute, to be enforced in the proceeding provided by the act itself. The indictment sets out that as a misdemeanor which the law does not recognize as a criminal offense. It calls for a prosecution in respect to a matter as to which no court has any authority to entertain a prosecution. The court, therefore, has no jurisdiction to determine the matter before it. Under such circumstances, a writ of prohibition is the proper and appropriate remedy. As was said by Judge Selden in Quimbo Appo v. People (supra): “ The scope of this remedy ought not, I think, to be abridged, as it is far better to prevent the exercise of an unauthorized power than to be driven to the necessity of correcting the error after it is committed” (p. 542). (See, also, Thomson v. Tracy, 60 N. Y. 31; Matter of Metz v. Maddox, supra.) This case is clearly distinguished from those where there is a crime of which the court would have jurisdiction if the fact set forth in the indictment sufficiently alleged the offense. In the instant case the facts alleged sufficiently set out the violation of section 546 of the Election Law, but such violation does not constitute a criminal offense. The Corrupt Practices Act provides for a civil proceeding in which the person proceeded against has an opportunity to confront and cross-examine witnesses, call witnesses in his own behalf, explain the seeming violation, and, if not willfully committed, an opportunity is afforded to correct the error. It was the intention of the Legislature, clearly expressed, that a full opportunity of exculpation should be given in a civil proceeding. It is proper to state that upon the second point discussed the views expressed are personal. The majority of the court recognize the serious nature of the claim urged by the relator, but decline to pass upon it at this time for the reasons stated by the presiding justice. — 838 — An absolute writ of prohibition should be granted in this case. Laughlin and Smith, JJ., concurred on the first ground; Clarke, P. J., and Shearn, J., dissented.