People ex rel. Folk v. McNulty

Heffernan, J. The sheriff of Albany county has appealed from an order of the Albany Trial Term of the Supreme Court sustaining a writ of habeas corpus and discharging relator from his custody. During the month of November, 1938, at the request of the Attorney-General, Mr. Justice Hinkley, a justice of the Supreme Court, was assigned to sit as a committing magistrate in Albany county for the purpose of inquiring into certain alleged election irregularities then under investigation by the Attorney-General. As a result of that inquiry Mr. Justice Hinkley issued a warrant upon an information laid before him charging relator with a misdemeanor in having violated section 61 of the Election Law and subdivision 2 of section 757 of the Penal Law in that she omitted to furnish to the board of elections of Albany county a sworn list of persons residing in her rooming or lodging house as required by statute. After the execution of the warrant relator was arraigned before Mr. Justice Hinkley, pleaded not guilty, demanded a jury trial and was admitted to bail. Relator’s counsel moved that the charge against his client be transferred to the Police Court of the city of Albany on the ground that the latter court had exclusive jurisdiction of all misdemeanors committed within the city of Albany, including the misdemeanor with which relator was charged. Decision was reserved on this motion and an adjournment was — 84 — taken, to November 9, 1938. On the adjourned date the motion of relator was renewed and thereupon Mr. Justice Hinkley announced his determination that the Police Court of the city of Albany had exclusive jurisdiction of the crime charged and made an order transferring the case, among others, to that court and directed relator to appear therein on November 16, 1938. On November 15,1938, the Governor of the State, at the request of the Attorney-General, issued a proclamation under section 67 of the Executive Law appointing an Extraordinary Special and Trial Term of the Supreme Court to be convened on December 12, 1938, for which a grand jury should be drawn, “ for the purpose of inquiry, trial and/or judgment which may be made, held, conducted or given thereat concerning or relating to any and all alleged violations of the Election Law and the elective franchise sections of the Penal Law in Albany County.” The Governor designated Mr. Justice John MacCrate, a justice of the Supreme Court, to preside at such term. Pursuant to an order of Mr. Justice MacCrate a grand jury was regularly summoned. On November 16, 1938, relator’s case was called in the Police Court, where she was rearraigned, renewed her plea of not guilty and demanded a jury trial, which was fixed for November 30, 1938, over the objection of the Attorney-General who requested that all further proceedings in the case be deferred until December 12, 1938, the date prescribed in the Governor’s proclamation for the convening of the Extraordinary Term of the Supreme Court, and for which a jury was drawn. On the adjourned date, at the instance of the Attorney-General, a further adjournment was taken to December 7, 1938. Relator was not brought to trial in the Police Court because in the interval the Attorney-General obtained from a justice of the Supreme Court an order to show cause why an order of prohibition should not be issued, under article 78 of the Civil Practice Act, restraining the police justice from conducting any further proceedings in the case. This order stayed all further proceedings on the part of the police justice until the further order of the court. The application for an order of prohibition was argued before Mr. Justice MacCrate on December 19,1938, and decision was reserved. On the same day the grand jury in attendance upon the Extraordinary Term returned an indictment against relator charging the same misdemeanor as was set forth in the information which had been lodged with Mr. Justice Hinkley. On arraignment upon the indictment, relator pleaded not guilty thereto, was held in $250 bail for trial, in default whereof she was committed to the custody of the sheriff — 85 — Relator immediately obtained a writ of habeas corpus returnable before a Trial Term of the Supreme Court, then in session in Albany county, presided over by Mr. Justice Schenck. Upon the return of the writ, after hearing counsel for the respective parties, the court sustained the writ and granted the order under review discharging her. Thereafter and on December 28, 1938, Air. Justice MacCeate granted the application of the Attorney-General restraining the Police Court justice from further proceedings in the case.* The question propounded is whether the grand jury at the Extraordinary Term of the Supreme Court appointed by the Governor had jurisdiction to find the indictment or whether the Albany Police Court has exclusive jurisdiction of such offense. There is an apparent conflict between section 67 of the Executive Law, as last amended by chapter 126 of the Laws of 1925, pursuant to which the Extraordinary Term was convened, and section 183 of the Second Class Cities Law, as last amended by chapter 83 of the Laws of 1933. The pertinent provisions of section 67 of the Executive Law are: “ Whenever the Attorney-General shall advise the Governor that there is occasion for an Extraordinary Term in any such county to inquire into and try cases arising under said article seventy-four of the Penal Law, the Governor may appoint an Extraordinary Term of the Supreme Court to be constituted and held for the trial of criminal cases in such county, pursuant to section one hundred and fifty-three of the Judiciary Law. Grand and petit juries shall be drawn and summoned for said term in the manner provided by law, and such cases shall be brought before such inquest and court as the Attorney-General shall direct. All the provisions of sections sixty-two and sixty-five of this chapter shall apply to such Extraordinary Term.” It is quite significant that in 1928 when the Legislature, by chapters 759, 760 and 761 of tbe laws of that year, amended sections 263, 262 and 264, respectively, of the Code of Criminal Procedure relating to grand juries, it provided that when investigating crimes against the elective franchise as defined by article 74 of- the Penal Law such an inquisitorial body might require the Attorney-General or any of his deputies to attend before them for the pmpose of advising and aiding them in the performance of their duties. These amendments are confirmatory of the legislative intent with respect to the scheme of investigation and prosecution of violators of article 74 of the Penal Law prescribed in section 67 of the Executive Law. Further indication of the intent of the Legislature in this request is provided by subdivision 2 of section 62 of the Executive Law, the terms of which are expressly made applicable to an investi — 86 — gation conducted by the Attorney-General under section 67 of that law. That subdivision provides, in substance, that whenever required by- the Governor the Attorney-General shall attend in person, or by one of his deputies, any term of the Supreme Court or appear before the grand jury thereof for the purpose of conducting in such court or before such jury such criminal actions or proceedings as shall be specified in such requirement. Relator’s distinguished counsel in an able and plausible argument asserts that, by virtue of section 183 of the Second Class Cities Law, the Police Court of Albany has exclusive jurisdiction to try and determine all charges of misdemeanor committed within that city. The material portion of that section is: “ The Police Court shall have, in the first instance, exclusive jurisdiction to try and determine all charges of misdemeanor, committed within the city and shall also have exclusive jurisdiction to try and determine all complaints and charges for violation of city ordinances, and shall have the power and jurisdiction now or hereafter conferred upon Courts of Special Sessions by section fifty-six and fifty-six-a of the Code of Criminal Procedure.” The argument of counsel for relator is that the section just quoted repeals by implication section 67 of the Executive Law. In this We think he is mistaken. It is the law declared on many occasions by the Court of Appeals that a repeal by implication is not favored and that it will be upheld only where the repugnancy is plain and unavoidable. It is also the law that a statute, applicable to a particular class of cases, is not repealed by a general statute, broad enough in terms to embrace the cases covered by the special law, unless the intent to work a repeal is manifest. The determining consideration must be whether on comparison of the subject-matter of the two statutes, the one is fairly to be regarded as a revision of the other. (Peterson v. Martino, 210 N. Y. 412.) It has been held by a long line of cases that statutes which are by their terms applicable to all subdivisions of the State of a particular class are general, and not local statutes. This line of cases includes Matter of Church (92 N. Y. 1); Matter of New York Elevated R. R. Co. (70 id. 327); Admiral Realty Co. v. City of New York (206 id. 110, 140); People ex rel. N. Y. Electric Lines Co. v. Squire (107 id. 593, 601); Matter of McAneny v. Board of Estimate, etc. (232 id. 377, 392, 393); Matter of Burke v. Krug (161 Misc. 687); Adler v. Keegan (251 N. Y. 467, 472, 473, 482). In the case of People ex rel. Kipper v. Ellinger (239 App. Div. 647; affd., 266 N. Y. 423) the Appellate Division held that the 1933 amendment to section 183 of the Second Class Cities Law was a general statute. The provisions of the Executive Law which we have quoted, identically worded excepting for the descriptive titles of the statutes — 87 — referred to, were first embodied in the law of this State by chapter 302 of the Laws of 1899, amending the original Executive Law. They were re-enacted among the Consolidated Laws in 1909 and have been carried down into the present Executive Law unchanged. These provisions are patently designed to apply to an unusual and extraordinary situation, namely, where the Governor and the Attorney-General of the State agree that the proper enforcement of the elective franchise laws, in the interests of the public at large, requires the appointment of a Special Term of court and a special grand jury and the intervention of the Attorney-General as prosecutor. It is equally clear from a reading of the clauses of section 67, quoted above, that it was the intention of the Legislature to designate the Extraordinary Term of the Supreme Court provided for therein as the forum wherein the “ inquest ” and “ trial ” of criminal cases arising under article 74 of the Penal Law should be conducted. No distinction is made in the statute between misdemeanors and felonies; as a matter of fact a majority of the crimes enumerated in article 74 of the Penal Law are misdemeanors. If relator is correct in her contention then we have the anomolous situation of an Extraordinary Term of the Supreme Court and a special grand jury called into action by formal proclamation of the Governor to investigate alleged election fraud in a county, yet powerless to consider: (a) Misdemeanors committed within a city of the second class, of which the city Police Court would have “ exclusive jurisdiction ” under section 183 of the Second Class Cities Law. (b) Misdemeanors committed within certain cities, of which the local City Court would have “ exclusive jurisdiction ” by special charter provisions. (c) Misdemeanors committed within the city of New York, of which the Court of Special Sessions would have “ exclusive jurisdiction ” under the Inferior Criminal Courts Act. (d) Misdemeanors committed within a village, of which the village police justice would have “ exclusive jurisdiction ” under section 182 of the Village Law. (e) In the first instance, felonies committed within a village, of which the village police justice would have “ exclusive jurisdiction to take the examination ” under section 182 of the Village Law. (f) The wrongful use by a police commissioner or a police officer of official power and authority to influence and control the political action of citizens. (Penal Law, § 756.) (g) The wrongful acts of election officials in revealing to others the names of the candidates for whom voters have voted, or marking — 88 — ballots so that they can be identified (Penal Law, § 762); or knowingly and willfully permitting unqualified persons to vote, or willfully and unlawfully hindering electors from voting, or removing official ballots from polling places or committing any one of the other numerous acts of willful misconduct at a polling place enumerated in section 764 of the Penal Law. (h) The wrongful use or threat to use intimidation or false or fraudulent device to influence citizens in voting or refraining from voting. (Penal Law, § 772.) (i) The wrongful acts of government officials in, compelling or inducing government employees to pay political assessments. (Penal Law, § 774.) (j) Crimes of conspiracy to commit any of the felonies enumerated in article 74 of the Penal Law, the elements of which may cut across city, village, town and county lines. (k) Any felonies, such as those defined in section 763 of the Penal Law, the existence of which a grand jury could not discover without having first inquired into and acquainted itself with a series of similar and recurrent acts denominated as misdemeanors. We are unwilling to give the statutes under consideration any such construction. The words “ in the first instance,” as used in section 183 of the Second Class Cities Law, are words of limitation and are inapplicable here (People v. McCarthy, 168 N. Y. 549), and the words “ exclusive jurisdiction,” in the same statute, refer to jurisdiction among inferior courts and cannot be construed to limit the jurisdiction of the Supreme Court. (People v. Wenk, 71 Misc. 368.) Police Courts are inferior courts, not of record, and their jurisdiction is limited to such as may be specially conferred by statute. (State Const, art. 6, § 17; Judiciary Law, § 2; Code Crim. Proc. § 74.) The two statutes under consideration are public acts relating to the same subject and, therefore, are in pari materia. It is the general rule that acts in pari materia are to be construed together as though forming parts of the same statute. {Smith v. People, 47 N. Y. 330; People ex rel. Doscher v. Sisson, 222 id. 387.) It is to be noted that the misdemeanor defined in article 74 of the Penal Law is not among those minor crimes enumerated in section 56 of the Code of Criminal Procedure of which Courts of Special Sessions have in the first instance exclusive jurisdiction to hear and determine subject to the power of removal provided in section 57 of the Code of Criminal Procedure. The crime with which relator is charged is known as an indictable misdemeanor and the Police Court is not vested with exclusive jurisdiction thereof. (People v. Harris, 123 N. Y. 70.) — 89 — By section 252 of the Code of Criminal Procedure it is made the duty of a grand jury to inquire into all crimes committed or triable in a county and to present them to the court; no distinction is made between felonies and misdemeanors. We are fully convinced that the Extraordinary Term of the Supreme Court has full jurisdiction in the case at bar and that the indictment against relator is valid. We might well rest our decision on the grounds stated, but in our opinion there is a more basic, more compelling and more fundamental reason for rejecting relator’s plea. The Supreme Court is the only court of original general jurisdiction coextensive in the arena of its exercise with that of the sovereignty which created it. Its jurisdiction is general, unlimited and unqualified and the Legislature has no power to lhnit or qualify it. Any act of the Legislature which deprives the court of the jurisdiction it had at the time of the adoption of the Constitution or limits or qualifies it is unconstitutional and void. (DeHart v. Hatch, 3 Hun, 375; People ex rel. Swift v. Luce, 204 N. Y. 478; Sill v. Village of Corning, 15 id. 297; Mussen v. Ausable Granite Works, 63 Hun, 367; People ex rel. Hill v. Supervisors, 49 id. 476; People ex rel. Mayor v. Nichols, 79 N. Y. 582; Alexander v. Bennett, 60 id. 204; Popfinger v. Yutte, 102 id. 38; Hutkoff v. Demorest, 103 id. 377; Matter of Malloy, 278 id. 429.) The Supreme Court had its origin in a statute passed by the Colony of New York on May 6, 1691 (1 Col. Laws, pp. 226-229), whereby, among other things, it was enacted “ that there shall be held and kept a Supreame Court of Judicature, which shall be Duely & Constantly kept att the Citty of New Yorke and not Elsewhere, att the severall & Respective times hereafter mentioned. And that there be five Justices att Least appointed & Commissionated to hold the same Court, two whereof together with one Chief Justice to be a Quorum. Which Supream Court are hereby fully Empowered and Authorized to have Cognizance, of all pleas, Civill Criminall, and Mixt, as fully & amply to all Intents and purposes whatsoever, as the Courts of Kings Bench, Comon Pleas, & Exchequer within their Majestyes Kingdome of England, have or ought to have.” This statute was to remain in force for only two years, but it was renewed, recognized, and continued by colonial act or royal ordinance substantially in the words quoted until the adoption of our first Constitution. (1 Col. Laws, pp. 226-229, 303-306, 359, 380; 2 id. 462, 639, 948; 3 id. 546,1007; 4 id. 1088; 5 id. 73.) Referring to this statute, we quote the following from Fowler’s Organization of the Supreme Court of Judicature of the Province — 90 — of New York (19 A. L. J. pp. 209-212): “ This act founded the Supreme Court. * * * Not only did this act erect the tribunal which still continues the great law court of the State, it vested in it a jurisdiction which change of government, and constant reforms and revolutions in procedure, have been powerless to abridge in any material respect, for while its jurisdiction has been enlarged by its union with the Court of Chancery, its ancient, jurisdiction still remains unimpaired. The Supreme Court of the province was. the instrument by which the great body of the jurisprudence of the English Common Law was applied to New York.” The Supreme Court of the Colony of New York was invested with the jurisdiction of the King’s Bench, Common Pleas and Exchequer in England “ to all intents and purposes whatever.” (Ordinance of May 15, 1699.) The Supreme Court, so far as its jurisdiction and powers are concerned, was, in the main, found in existence by the Constitution of 1777. It did no more than recognize, and thus continue that existence. The Constitution of 1821 merely recognized the existence of the court and fixed the number of its members. (State Const, of 1821, art. 5, §§ 1-7.) That of 1846 declared that there should “ be a Supreme Court; having general jurisdiction in law ■ and equity.” In the present Constitution the “ Supreme Court is continued with general jurisdiction in law and equity.” (State: Const, art. 6, § 1.) By section 35 of the Constitution of 1777, “ such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the Legislature of the Colony-of New York, as together did form the law of the said Colony on the 19th day of -April,” 1775, were continued as the law of the State. The second Constitution contained similar provisions as to what constituted the law of the State, except that it omitted “ the statute law of England and Great Britainj” and abrogated such parts of both common and statute law “ as are repugnant to this Constitution.” (State Const, of 1821, art. 7, § 13.) The Constitution of 1846 abolished the Court of Chancery and repeated the provisions as to what should be the law of the State. (State Const, of 1846, art. 14, § 8; art. 1, § 17.) The present State Constitution (Art. 1,§ 16*) provides: “ Such parts of the common law, and of the acts of the Legislature of the Colony of New York, as together did form the law of the said — 91 — Colony, on the nineteenth day of April, one thousand-seven hundred and seventy-five, and the resolutions of the Congress of the said Colony, and of the convention of the State of New York, in force on the twentieth day of April, one thousand seven hundred and seventy-seven, which have not since expired, or been repealed or altered; and such acts of the Legislature of this State as are now in force, shall be and continue the law of this State, subject to such alterations as the Legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are hereby abrogated.” Section 64 of the Civil Practice Act reads: “ The general jurisdiction in law and equity which the Supreme Court of the State possesses under the provisions of the Constitution includes all the jurisdiction which was possessed and exercised by the Supreme Court of the Colony of New York at any time, and by the Court of Chancery in England on the 4th day of July, 1776; with the exceptions, additions and limitations created and imposed by the Constitution and laws of the State. Subject to those exceptions and limitations the Supreme Court of the State has all the powers and authority of each of those courts and exercises the same in like manner.” The jurisdiction in law and equity possessed by the Supreme Court is not curtailed by a grant to another tribunal of jurisdiction as to a particular matter. (Barone v. ¿Etna Life Ins. Co., 260 N. Y. 410.) Neither is its jurisdiction affected by legislation relating to the Surrogate’s Court. The jurisdiction conferred by the Legislature on that court is simply concurrent with that possessed by the Supreme Court. (Matter of Albanese, 245 App. Div. 404; affd., 272 N. Y. 552.) The Court of King’s Bench, the powers of which the Supreme Court inherited, had general superintendency over all courts of inferior jurisdiction and might remove to itself by certiorari all proceedings from any of them. • (1 Chitty Cr. Law, 374.) The court took cognizance both of criminal and civil causes. (1 Holds-worth’s History of English Law, pp. 212-231.) Its jurisdiction was “ very high and transcendent.” (3 Black. Com. pp. 41-46.) That author says that for the purpose of transferring a cause to the King’s Bench “ a certiorari may be granted at the instance of either the prosecutor or the defendant; the former as a matter of right, the latter as a matter of discretion.” (4 Black. Com. 321.) The authorities are numerous that this power existed and was frequently exercised by the King’s Bench in England, and that — 92 — it was transmitted by the Constitution of 1777, and subsequent Constitutions to, and is now possessed by, the Supreme Court of the State. (Jones v. People, 79 N. Y. 45.) Relator’s counsel asserts that section 18 of article 6 of the Constitution vests in a local criminal court jurisdiction to the exclusion of the Supreme Court. That argument is without merit. That section of the Constitution merely authorizes the Legislature to confer upon Courts of Special Sessions and inferior local courts jurisdiction to try offenses of the grade of misdemeanors which, before its adoption, they were without jurisdiction to entertain. (People v. Harris, 123 N. Y. 70; People v. Kischel, 276 id. 116.) There is nothing in the language employed in section 18 which furnishes the slightest justification for the conclusion that the Legislature was thereby empowered to deprive the Supreme Court of its ancient jurisdiction of all crimes. The Legislature was simply authorized to confer concurrent jurisdiction as to certain misdemeanors on inferior courts. In enacting section 183 of the Second Class Cities Law the Legislature did not and could not limit or abridge the jurisdiction of the Supreme Court. Where a court has jurisdiction of a crime, a statute simply conferring the same jurisdiction on another court does not deprive the former of its jurisdiction, in the absence of an express provision or clear implication to that effect, but merely confers concurrent jurisdiction. (16 C. J. 150; People v. Harris, supra.) True it is that there are more or less loose dicta in the books which would seem to indicate that the Legislature may confer upon, inferior courts exclusive jurisdiction of misdemeanors. No well-considered authority in this State sustains such a proposition. The order appealed from should be reversed and the writ of habeas corpus dismissed. Hill, P. J., concurs; Rhodes, J., concurs on the first ground stated in the opinion, and in the result; McNamee, J., dissents, with an opinion, and votes to affirm the order; Bliss, J., dissents, with an opinion, and votes to affirm the order. Footnotes [*] See 169 Mise. 957. [*] Renumbered § 14 by Constitution of 1938, effective Jan. 1, 1939.