150 N.Y.S. 596 | N.Y. Sup. Ct. | 1913
Relator seeks by writ of habeas corpus his discharge from the workhouse on the ground that the magistrate who committed him was without jurisdiction.
“Whenever it shall appear, on oath of a credible witness before any police justice, * * * that any person * * * has been guilty of any such disorderly conduct as in the opinion of such magistrate tends to a breach of the peace, the said magistrate may cause the person so complained of to be brought before him to answer the said charge.”
The subject of the section is disorderly conduct, and the word “such” is used as descriptive of the disorderly conduct. It is not used as referring to the particularized acts of disorderly conduct enumerated in section 1458. Were it intended to so refer, the word “foregoing” or some equivalent would have been used. This view is emphasized by the fact that section 1459 was enacted 27 years before section 1458 and that the latter section, though numerically preceding in the Consolidation Act, has not repealed or modified in any way section 1459. Case of Twelve Commitments, 19 Abb. Prac. 394. The law of 1833, as embodied in section 1459, must be considered independently and unrelated to section 1458.
Criticism is directed to the phrasing of the section which assigns the question of fact to be determined in the opinion of the magistrate and not in his judgment. It is contended that under this provision there would not be certainty or a definitive rule of conduct, since opinion is liable to fluctuate and become capricious. This is untenable. The intent of the Legislature plainly is that the judgment of the magistrate should be unvoiced. Opinion is but a synonym for judgment. Both have their genesis in thought and depend alike upon discernment and discrimination in reaching a conclusion. In order to give effect to the legislative intent, the word “opinion” must be held to mean and be the equivalent of judgment. And as a consequence it must be held that the magistrate is vested with summary jurisdiction to hear and determine.
The writ is dismissed, and.the prisoner remanded to serve his sentence.