37 N.Y. 661 | NY | 1868
Lead Opinion
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The first point made in the cases before us is, that the act establishing the metropolitan board of health is in violation of the second section of the tenth article of the Constitution of this State. That section is in these words: "All county officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of the respective counties, or appointed by the boards of supervisors or other county authorities, as the legislature shall direct. All city, town and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose. All other officers, whose election or appointment is not provided for by this Constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the legislature may direct." This provision has been before this court on several previous occasions, and certain positions in relation to it may be considered as settled. Its plain meaning, that all the local officers referred to, whose offices were in existence at the adoption of the Constitution, shall be elected or appointed by the local authorities of which they are the representatives, *666
has been fully sustained. So it has been held, that, to change the name, or to divide up and partition the duties among several, or to take parts of the duties of several offices and combine them in one, will not be permitted. If the offices in question are county or city offices, and were in existence at the adoption of the Constitution of 1846, it is not competent to vest the appointment of the incumbents in the governor and senate. It belongs, exclusively, to the local power, to fill the offices, either by election or by appointment, as the legislature may direct. (The People v. Draper,
As early as 1796, and by repeated statutes, from that time down to the adoption of the Revised Statutes, in 1830, the duty of attending to the health of the city, to cases of infectious disease, to vessels from unhealthy ports, to establishing and regulating slaughter-houses, has been given to, and exercised by, the mayor of the city of New York, the mayor, aldermen and commonalty thereof, commissioners of health, health wardens for the city, or some other local officers of that city. (3 Greenl. ed. Laws, ch. 38, p. 305; 1 R.L. 1813; Laws 1850, ch. 275.)
If the act of 1866 (ch. 74), which we are considering, was an act for the regulation of these subjects, in the city and county of New York alone, it would be difficult to sustain it, under the decisions of this court. The act commences as follows: "So much of the territory of the State of New York, and of the cities, villages and towns thereof, as now compose the metropolitan police district of the State of New York, shall constitute, and is hereby declared, a district to be known as `The Metropolitan Sanitary District of the State of New York.'" By the act of April 15, 1857, "To establish a Metropolitan Police District, and to provide for the government thereof" (ch. 569), the counties of New York, Kings, Westchester and Richmond were united in a district, to be called the "Metropolitan Police District of the State of New York." The district, over and upon which the powers of the newly created authority now before us are to be exercised, consists, *667 therefore, of the four counties of New York, Kings, Westchester and Richmond.
In The People v. Draper (supra), it was held, that the legislature may establish new civil divisions of the State, embracing the whole or parts of different counties, and that, when so established, the provision of the Constitution under consideration, relative to county officers, is not applicable to such district. It was distinctly stated, in the opinions delivered in that case, that the offices which were affected by the act of 1857 were county offices, and that, if the district over which the new commissioners were appointed had consisted of the county of New York alone, the act could not have been upheld. The validity of the act was sustained, upon the ground that the legislature had authority to create new civil divisions of the State, embracing more than one county, for purposes of temporary or permanent civil government, not impairing, however, the county organizations, and that officers over such newly created district could legally be appointed by the governor and senate. That case is decisive of the validity of the present act. It is not in the least shaken, but sustained and confirmed, by the other cases more recently decided in this court. The same distinctions are there recognized, and the same principles are upheld. (ThePeople v. Metropolitan Police,
It is further objected that the act violates the second section of the first article of the State Constitution which declares that "the trial by jury, in all cases in which it has heretofore been used, shall remain inviolate for ever," and the sixth section of the same article, which provides that "no person shall be deprived of life, liberty or property without due process of law." The argument on this point has been conducted by Mr. Heister's counsel, chiefly upon the allegation that on the question of nuisance or no *668 nuisance the party complained of had a right to the opinion of a jury before his rights could be finally disposed of. It was admitted on the argument by the additional counsel that a court of equity could give final judgment without calling in a jury. It will be observed that in each of the cases now before us, it was alleged and decided that the proceeding was "dangerous to the public health." This was in addition to the charge that it was a nuisance.
No one has been deprived of his property or of his liberty by the proceedings in question. The commissioners have provided that cattle shall not be driven upon certain streets except at certain hours of the day. They have also provided that the business of slaughtering cattle shall not be carried on in the city of New York south of a designated line. These regulations take away no man's property. If Mr. Heister owns cattle, his ownership is not interfered with. He may sell, exchange and traffic in the same manner as any other person owning cattle may do. If he owns a slaughter-house, his property remains intact. He may sell it, mortgage it, devise it or give it away, and may use it just as any other man or all other men in the State combined may do. Simply the health regulations of the district operate upon his cattle and his slaughter-house in the same manner that they do upon live property owned by all others, and the use of the streets for dangerous purposes of the prosecution of a business dangerous to the public health is regulated by the ordinances in question. This practice is not forbidden by the Constitution, and has been recognized from the organization of the State government, and is to be found in nearly every city or village charter which has been granted by the legislature.
Nor, in my judgment, is there any greater plausibility in the argument that the act violates the right of trial by jury. The Constitution recognized the fact that there were certain classes of cases which had not been and need not be tried by a jury. Thus, it does not say that the right of trial by jury shall exist in all cases, but in all cases "in which it has been heretofore used." Equity cases, certain attachment proceedings, *669
and proceedings under the absconding debtors' acts, references, appraisals of real estate taken by corporations, and many others, were well understood to have been usually determined by another tribunal, and were allowed to remain undisturbed. (Sands v.Kimbark,
I do not doubt, either, that, upon general principles of law, and considering them as nuisances, the right of regulating *671 the use of the streets by droves of cattle, and of removing houses for their slaughter from particular locations, as the public health required, was within the power of the common council or other local authorities, independently of the statutes by which it was given. (Van Wormer v. Albany, 15 Wend. 262; 3 Black. Com. b.) It would be difficult, then, to say that the power given by this act of 1866, was a new exercise of authority, not allowed by the Constitution, or that it was a case in which a jury trial had theretofore been had.
Before leaving the consideration of this constitutional objection, it ought, perhaps, to be observed that the act provides for notice to the party affected, before the judgment finally passes against him. In substance, the board, upon the evidence before it, determine that a prima facie case exists requiring their action. In the present instance, after such preliminary determination made, notice was given to Heister of what had been done, and that he could be heard upon the subject, with his witnesses, at a time designated. This gave the same protection to all his rights as if notice had been served upon him before any preliminary proceedings had been taken. He refuses to litigate before the board the question whether his pursuit is dangerous to the public health, but places himself upon their want of power over the subject. He cannot complain now, that their judgment upon the facts is to be held conclusive upon him.
It is further insisted that the act in question is invalid, in that it confers judicial power upon the metropolitan board of health. If I understand this argument, it is this: the Constitution says (art. 6, § 18): "All judicial officers of cities and villages, and such judicial officers as may be created therein by law, shall be elected at such times and in such manner as the legislature may direct," and as judicial power is here given to officers who are not elected, but are appointed by the governor and senate, the appointment is invalid.
The same argument is drawn from the general distribution of legislative, executive and judicial powers in the Constitution, *672 and the provision that the legislature may establish inferior local courts in cities, and that they shall be uniform except for the cities of New York and Buffalo.
These arguments are earnestly pressed, and when the case occurs where they necessarily arise, will be carefully considered and decided. In my opinion they do not now arise.
The power to be exercised by this board upon the subjects in question is not judicial in its character. It falls more properly under the head of an administrative duty. It is no more judicial than the action of commissioners of highways in laying out or refusing to lay out a highway, or in determining the necessity of rebuilding a bridge in their town. It is no more judicial than is the action of commissioners of excise in the country, or of the metropolitan police board, who, as commissioners of excise, discuss the question of whether a license shall be granted to an individual to keep an inn or to sell spirituous liquors. The qualifications of the person are scanned, the place proposed for the sale of liquors, and whether the applicant has the accommodations required by law, the public necessity or propriety of such permission to sell, are examined into and determined. But such powers have never been held to be of a judicial character. The power of the metropolitan board to act upon the latter subject has been distinctly sustained in this court. (Metropolitan Board v. Barre,
It does not affect this or any point in the case, that the board have made these ordinances for the city of New York alone. They have full power to make them for the other parts of their district when and as the necessities of the case may require.
That the legislature possess the entire control over the streets of the city of New York, and that it can delegate such portions of its authority to the local organizations, and in such measure, form and under such restrictions as it thinks proper, has been frequently decided. (Darlington v. The Mayor,
The judgment of the General Term in each case should be reversed and judgment ordered for the appellants, and in *673 number two, judgment should be entered for the two penalties demanded in the action.
WOODRUFF, MASON, BACON and DWIGHT, JJ., concurred.
Dissenting Opinion
The appeals, in the cases now before us, present for our consideration, the constitutional validity of the act of the legislature creating a metropolitan sanitary district and board of health, and of several provisions of said act and of the act amending the same passed in 1866. (Sess. Laws of 1866, chaps. 74, 686.) Each of the cases involve questions of grave moment and of paramount importance to the public, and should be examined and considered with calm deliberation, and with a proper appreciation of the interests involved.
It is claimed that so far as the acts of the legislature organizing the metropolitan board of health confers power to legislate, they conflict with the Constitution and are void. At the time when the Constitution of 1846 was adopted, the several boards of health in the cities and villages of this State were vested with authority, and it was made their duty "to make regulations in their discretion concerning * * the suppression and removal of nuisances, and all such other regulations as they shall think necessary and proper for the preservation of the public health." (1 R.S. [2d ed.] 445, § 27.) This law was in force at the time when the Constitution went into operation, and in pursuance of the powers thus conferred upon them, a code of ordinances had been passed by the board of health of the city of New York, which consisted of the mayor and common council of that city (Sess. Laws of 1823, ch. 71; id. of 1850, ch. 275; 1 R.S. [5th ed.] part 1, ch. 14), which were in operation when the new board of health was organized. By the acts organizing the new board, which are now submitted to our consideration, they succeeded to the powers vested in the local authorities. By the twentieth section (Sess. Laws of 1866, ch. 686), the power to make rules and regulations was conferred upon them, and they were vested with extensive legislative powers, entirely local in their character. They *674 possess the power to create offenses, and to enforce the ordinances made by them by a penalty not exceeding fifty dollars for each offense. By section thirty (Sess. Laws of 1866, ch. 74), it is declared that "whoever shall violate any of the provisions of this act, or any order of said board, made under the authority of the same, or any by-law or ordinance therein referred to, or shall obstruct or interfere with any person in the execution of any order of said board," etc., "or willfully omit to obey any such order, shall be guilty of a misdemeanor, and be liable to be indicted and punished for such offense." It also provides that "any person, corporation or body which may have willfully done or omitted any act or thing which is in this act, or any law or ordinance therein referred to, declared to be, or to subject the party guilty thereof to punishment for a misdemeanor, shall, in addition thereto, be subject to a penalty of $250."
In pursuance of the provisions of the twentieth section, above cited, a large number of rules, regulations and ordinances have been passed, embracing a variety of subjects relating to the preservation of the public health.
At the time when the Constitution went into effect, and prior to the passage of the act in question, the boards of health, in their several localities, were the only bodies who enjoyed the power of local legislation in regard to the public health. They had extensive and almost unlimited powers upon this subject (1 R.S. [2d ed.] ch. 14); and severe penalties were imposed for a violation of any regulation made by them. (Id. p. 446, § 28; Laws of 1832, ch. 333.) As we have seen, the Constitution recognized the validity of these laws, and the legislature had full power and authority to restrict these powers; but they had no right to confer them upon other and different bodies, holding their offices by State authority, and not elected by the people or appointed by the local authorities within the limits of whose jurisdiction they were authorized to exercise their functions, within the provisions of section second of the tenth article of the Constitution.
By the first section of the third article of the Constitution, the legislative power is vested in the senate and assembly; *675
and thus the legislature were authorized to enact and to repeal laws in reference to the public health, without any restriction or limitation whatever. But while the legislature can confer power, in a restricted sense, upon public bodies which the Constitution recognized at the time of its adoption, as authorized to receive such power, there is nothing in that instrument which sanctions a transfer of such power to public officers or to any body who hold their offices by virtue of appointment from the governor and senate. It cannot take away legislative authority, delegated to localities, and confer it upon officers created by virtue of its own enactments. The common councils of cities, the trustees of villages, and the electors of towns when assembled in town-meeting, possessed and enjoyed certain powers and privileges in this respect, when the Constitution took effect. These may be changed, modified or repealed; but they cannot be transferred to bodies or persons not recognized by the Constitution. The Constitution confers certain legislative powers on local organizations. By article eight, section nine, it provides for the organization of cities and villages. By article three, section seventeen, it authorizes the legislature to confer upon boards of supervisors certain powers of local legislation. Considering the laws as they existed when the Constitution was adopted, conferring local legislation upon boards of health, that instrument must be regarded as recognizing the powers thus conferred; and the absence of power to confer such authority upon new officers must, I think, be considered as a prohibition to go beyond this. As already stated, there were certain powers existing when the Constitution took effect, and certain other powers conferred directly by the Constitution. It would, therefore, seem to follow, by implication, that the legislature was prohibited from granting powers of local legislation to any bodies which were not thus recognized. In ThePeople v. Draper (
The provisions of the Constitution defining legislative powers are evidently intended as restraints upon the authority of the legislature, and to prevent the exercise of such powers by conferring it upon officers neither elected by the people or appointed by the local authorities affected. Clarke v. TheCity of Rochester (
It is said, in reference to the case of The People v.Acton, that, so far as it is applicable to the cases before us, it was decided upon the ground that the new power taken from the local officers of New York city was conferred on the police board, to be solely exercised by the latter in said city. I do not so understand that decision. INGRAHAM, J., in his opinion in that case, says: "The Constitution provides that the legislature may confer upon the board of supervisors powers of local legislation. The granting of such a power to the legislature naturally involves the supposition that they could not otherwise give such a power. If they could not give any such power to boards of supervisors without a constitutional provision, I am at a loss to see any authority to bestow such a power on a board created by themselves, and not a recognized body in the Constitution. The powers given them are to legislate in regard to local matters." He cites Barto v. Himrod (4 Seld. 483) as an authority for the principle that laws could only be enacted by the legislative bodies to which the legislative power is committed by the Constitution; and remarks: "I see no good reason why the legislature should be allowed to commit to the board of police the power to legislate, when they could not even submit to the people the question whether they would approve of a law." If the legislature *678 could not delegate such a power to the board of police, how could it be done to any other board of officers similarly constituted and organized? It will be perceived that the learned judge does not place his opinion upon the ground that the powers conferred are to be solely exercised within the city, but upon the broad ground that legislative powers cannot be conferred upon a board created by the legislature itself, which had no existence when the Constitution was adopted, and which the Constitution did not recognize. Nor do I understand that the opinion of Justice SMITH sustains any such doctrine as is claimed. But, even conceding that there may be some force in the suggestion made as to the effect of that decision, can it, in any way, aid in sustaining the constitutionality of the law in question? The order of the board of health, for a violation of which a penalty is claimed, was entirely local. The ordinance claimed to have been violated, so far as it is in controversy here, was local in its operation, and related to the city of New York; and the injunctions sought have reference to the local action of the board of health as to New York city alone. Here, then, is the exercise of legislation, entirely local in its character.
The result of the examination I have bestowed upon the question discussed, brings my mind to the inevitable conclusion that the provisions of the act to which I have adverted, confer legislative powers upon the board of health in violation of the Constitution. They invade the powers guarantied by the Constitution to local authorities, and confer them upon officers who hold their offices by appointment from the governor and senate, and who are not chosen by the electors of the city of New York or appointed by any body so elected, and who do not not hold from any authority which invest them with the prerogatives of local legislation.
It matters not, I think, that the board of health claim to act in a more extended territory than the city of New York. Nor does it, in my opinion, contravene the principle decided in ThePeople v. Draper, to hold that legislative powers cannot be conferred; for no such powers were originally conferred upon the police commissioners as are contained in *679 this act, and when the legislature attempted to confer those of a similar character it was decided that it was unauthorized and in violation of the Constitution. (People v. Acton, 48 Barb. 528.)
An objection is taken to the fourteenth section of the act (chap. 74, Sess. Laws of 1866) upon the ground that it confers judicial powers in violation of the Constitution. The first part of the section provides that "whenever any building, erection, excavation, premises, business pursuit, matter or thing, or the sewerage, drainage or ventilation thereof in said district, shall, in the opinion of the board," etc., "be in condition or effect dangerous to life or health, said board may take and file among its records what it shall regard as sufficient proof to authorize its declaration, that the same, to the extent it may specify, is a public nuisance, dangerous to life or health; and said board may thereupon enter in its records the same as a nuisance, and order the same to be removed, abated," etc. The order is to be served before execution, and the board have power to rescind, modify and re-affirm the order and to direct the execution of the original or of a new or modified order, as it may determine. By a subsequent provision of the same section, the board, upon what it may regard as adequate proof of a violation or resistance of any order, law or ordinance, may issue a warrant for the arrest of any offender. These provisions confer complete judicial authority and power to act and to pronounce judgment in the matter, more extensive and summary in its character than the powers enjoyed by any tribunal of justice or officer known to the law. I am inclined to think that this provision is in conflict with section eighteen of article six of the Constitution, which provides that "all judicial officers of cities and villages, and all such judicial officers as may be created therein by law, shall be elected at such times and in such manner as the legislature shall direct." By section fourteen of the same article: "Inferior local courts of civil and criminal jurisdiction may be established by the legislature in cities;" but under section *680 eighteen, as we have seen, all officers of such courts must be elected by the people.
There is no authority in the Constitution for the appointment of judicial officers by the governor except in cases of vacancy, and all other judicial officers must be elected as the Constitution provides. As the board of health are appointed, I do not well see how the legislature can confer upon them any such authority as the act provides. In Sill v. The Village ofCorning (
The provision of the act referred to does not call upon the board to act judicially in the discharge of certain duties which are imposed upon them, but vests them expressly with specified judicial powers, and, therefore, cannot be sustained. It is said that judicial duties may be imposed on a board of local commissioners which are not elected by the people or appointed by an officer or a body elected by the people, and we are referred to two cases in support of this position.
In Commissioners of Pilots v. Vanderbilt (
The first entitled action is brought to recover a penalty for a violation of an order of the board, made under the first subdivision of the fourteenth section of the act, and presents the question whether the board of health had a right to make and enforce an order abating the business of slaughtering animals, at the defendant's place of business, as a public nuisance, and as dangerous to life and health. The power thus exercised is in the nature of, if not entirely a judicial act. And conceding that such a power may be conferred, the act of the board in making the order in question, was, I think, in violation of the Constitution of this State, which guaranties that no person shall be deprived of his "property without due process of law." (Const. of N Y art. 1, § 6.) The order of the board pronounced condemnation of the defendant's business without any sort of a preliminary notice, and with no opportunity to be heard and to try the question before the rendition of judgment. The board never acquired jurisdiction over the person or the subject-matter before the condemnation was had, and a notice afterward did not remedy the difficulty or give force and vitality to their proceedings. The judgment was either valid or invalid when it was pronounced, and, unless jurisdiction was then acquired, no subsequent act can give it validity or change its real character. It is certainly an unusual, an anomalous, and a remarkable proceeding, unknown to the ordinary course of practice in judicial tribunals, to pronounce judgment in the first instance, and then to call upon a party whose property has been condemned, to vindicate himself before a tribunal which is already committed, by proof that the charge made and established by their judicial action is without foundation. More especially is such a proceeding objectionable, when it is tolerated and allowed without an affidavit to support the charge made, and the board are vested with authority to act and to make an adjudication upon "what it shall regard as sufficient proof." Under this act, a communication *682 dictated by malice or rivalry, might be the effective instrument of destroying the property of a citizen, and inflicting a serious injury upon his reputation. And the officers invested with such power might, under the slightest pretext, and upon a groundless accusation, be the authors of the most mischievous consequences. Clearly this is not "due process of law," for no such power is ordinarily conferred upon any court of law.
The provision of the Constitution which has been referred to, means that no person shall be deprived of any of his rights or privileges, unless the matter shall be adjudged against him upon trial had according to the course of common law; that it may be ascertained judicially that a person has forfeited his rights, a suit must be prosecuted and conducted according to the prescribed forms and solemnities for ascertaining guilt or determining title to property. (Taylor v. Porter, 4 Hill, 147; Westervelt v.Gregg, 2 Kern. 202; Wynehammer v. The People, 3 id. 378;Embury v. Conner, 3 Comst. 511; The People v. Toynbee, 2 Parker, 514, 515, 526.) And this must be done in the regular course of administration through courts of justice. (Rodgers v.Barker, 2 Kern. 13, 447, 454; Burch v. Newbury, 6 Seld. 374, 397; The People v. Corporation of Albany, 11 Wend. 539;Wynehammer v. The People, 3 Kern. 426.) By the fourteenth section of the act, as we have seen, the board of health have authority, without notice to the party to be affected by their proceeding, by partial and hearsay evidence, to declare the property of a citizen a nuisance, dangerous to life and health, and unless afterward satisfied by the owner that the judgment is erroneous and should be reversed, to affirm and ratify the order thus made. Such a proceeding is unknown to the proceedings in any court of justice, and there is no power, in my opinion, to delegate to a board of health the right to define what shall be a nuisance, or to make acts criminal which the law holds innocent. (Mayor, etc., v. The Board of Health, 31 How. 395.) It is no answer to views I have expressed, to say that the legislature have the power to confer upon the board the right to do and to make it their *683 duty to do what every citizen has a right to do in his own motion, for the board seek to recover a penalty on the strength of their official action, and by virtue of the order made by them, not as individuals or upon their responsibility as officers alone, but by virtue of an act authorized and done in pursuance of an act of the legislature. They attempt to deprive a person of his property under the provisions of this act, and to recover a penalty because that person refused to obey an unlawful and an unauthorized order. If the position is a sound one, that the legislature have not the power to confer the authority claimed to be exercised, then this feature of the act is unconstitutional and void. And if it be void, then the adjudication made under this provision is without authority, and can be attacked collaterally as well as in a direct proceeding for that purpose. It is a jurisdictional question, and such questions are always open for consideration. This proposition is so plain, that it is unnecessary to cite authorities to sustain it. It follows that the proceedings may be reviewed without a certiorari, and that the action for a penalty in the first action cannot be maintained.
The second action, which is brought to recover penalties for violations of an ordinance of the board, presents the question as to the validity of the ordinance, and as I have shown that the board does not possess legislative powers, the result is inevitable that the action cannot be maintained.
In the third action which is brought against the board, the plaintiff asks that the board may be enjoined from enforcing the ordinances prohibiting the driving and slaughtering of cattle, and that it be declared void. It is conceded by the case that the business of driving and slaughtering cattle impairs the enjoyment of life, that unhealthy exhalations are generated, and that a large number of physicians pronounce the business dangerous to health.
In Catlin v. Valentine (9 Paige, 579), it was held that to constitute a nuisance it is not necessary that a noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces what is offensive to the senses, *684 and which renders the enjoyment of life and property uncomfortable. (See also Brady v. Weeks, 3 Barb. 157.) The plaintiff virtually admits that his business is a nuisance, and asks the court to interfere to prevent its abatement. When the question of the existence of a nuisance is in doubt, the court will grant an order restraining the board of health from abating it. (See Rogers v. Barker, 31 Barb. 447; Mayor v. Board ofHealth, 31 How. 385; Shuster's case, not reported.) But where it is entirely clear that a nuisance does exist, an injunction should not issue. In this case, however, it is apparent that the ordinance is void, because the legislature cannot delegate to the board the power to legislate, and the judgment should be to that effect, but without an injunction.
In the fourth case, the question arises whether an injunction should issue to restrain the defendants from enforcing the order made by them, declaring the business and premises of the plaintiff a nuisance. If I am correct in holding that the order was made without lawful authority, and is void for that reason, then the proceedings are null and void, and the plaintiff is entitled to the relief demanded. As I have already stated, the question is one of a jurisdictional character, and the party affected by the order is not confined to the remedy of acertiorari to test the validity of the order made.
Several other questions are presented, but as those already discussed dispose of the cases, it is not necessary to examine them. Upon the grounds already stated, I am of opinion that the judgment of the court below should be affirmed in all except in the third case, in which it should be modified in accordance with the views here expressed.
GROVER and CLERKE, JJ., concurred.
Judgment of General Term reversed in each case, and judgment ordered for the appellants, with costs, and, in the case of number two, for the two penalties claimed. *685
THOMAS FITZGERROLD, Plaintiff in error, v. THE PEOPLE.
Dissenting Opinion
This is a writ of error directed to the Supreme Court in the second judicial district, bringing up the record of an indictment, conviction and sentence of the plaintiff in error, and which had been removed into that court by writ of error to the Court of Oyer and Terminer in and for the county of Westchester.
The plaintiff in error, Fitzgerrold, was indicted in the Westchester Oyer and Terminer for the alleged crime of murder. The substantive allegation in the indictment, on which the question presented below and in this court arises, is, that "Thomas Fitzgerrold feloniously, willfully, and of his malice aforethought, did kill and murder Ellen Hicks, by shooting her through the body with a leaden bullet discharged from a musket," etc. Upon this indictment he was brought to trial before the Westchester Oyer and Terminer, in December, 1866, and the record states that the jury, in returning their verdict, "say that they find the said Thomas Fitzgerrold guilty." Upon this conviction he was sentenced to be hung the ensuing January. The Supreme Court in the second district affirmed the judgment and ordered the sentence to be carried into execution, and a writ of error having been brought to this court, with a stay of execution, the case comes here for a final adjudication.
The point made by the counsel for the plaintiff in error is, that the indictment only charges murder in the second degree, and the jury having returned a general verdict of guilty, the Court of Oyer and Terminer had power only to pronounce a sentence authorized by law in the case of a conviction for murder in the second degree, and that the sentence actually pronounced was unauthorized and void. The question is one of much interest and importance, and has never been presented for adjudication since the change made by the statute of 1862 defining murder in a somewhat different manner from that contained in the Revised Statutes, and creating two classes or degrees of that crime. *686 At common law there were no degrees of murder, and the short and comprehensive definition of the crime was, "when a person of sound memory and discrimination unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, express or implied." (3 Coke's Ins. 47.) The essential ingredient of the crime was malice aforethought, or prepense, as the older books called it, but this might be implied from circumstances which necessarily proved its existence. The Revised Statutes undertook to give a more precise as well as a fuller definition of the crime, but they did not in reality enlarge the scope of the definition, nor include in it any thing which had not been embraced by the common law within the general category of murder.
The Revised Statutes defined the killing of a human being (unless it be manslaughter, or excusable or justifiable homicide) to be murder in the following cases:
"1. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being.
"2. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.
"3. When perpetrated without any design to effect death, by a person engaged in the commission of any felony."
This was the entire definition, and although distinguished by different characteristics and attendant circumstances, the definition embraced but one offense, not separated into nor discriminated by grades or degrees of crimes. After the Revised Statutes went into operation, the case of The People v. Enoch arose, and was decided in the Supreme Court, and ultimately in the Court of Errors. (15 Wend. 159.) He was indicted for murder, and the averment was, that the offense was committed "feloniously, willfully and of malice aforethought," using substantially the old common law form, and not adopting the words of the statute. Enoch was convicted of murder, and sentenced to be executed. The Supreme Court held that the indictment was good, and sustained *687 the judgment, and the Court of Errors approved the decision, deciding, among other things, that the principal object of the statute was to restore the common law of murder as it anciently existed, by discriminating between a felonious killing with malice aforethought, and a felonious killing without such malice, and thus to restrict certain cases to the grade of manslaughter, which theretofore were held to be murder.
If there had been no change in the statute, I am inclined to the opinion that this decision (although, as I think, erroneous in principle, and hardly to be reconciled with some recent holdings of this court) would control this case and uphold the judgment. But in 1862, the legislature saw fit to modify the provisions of the Revised Statutes in relation to the crime of murder, and among other things, to create two grades of the offense, to wit, murder in the first and in the second degree. In defining murder in the first degree, they changed the definition of the Revised Statutes of murder, by dropping the third subdivision of section five, and substituting in place of it the words "when perpetrated in committing the crime of arson, in the first degree," and then added to the section a clause that such killing, unless it be murder in the first degree, or manslaughter, or excusable or justifiable homicide, "or when perpetrated without any design to effect death, by a person engaged in the commission of any felony, shall be murder in the second degree." It will thus be seen that the transaction thus distinguished, and which had been embraced in the original section defining murder, was taken out of that section, and made the distinguishing mark of murder in the second degree, and whatever practical difficulty may arise, as it has not unfrequently arisen, in ascertaining what other taking of life may fall outside of the definition of other grades of homicide, and within this new class or degree, there is no difficulty in determining that a case which presents these features, to wit, killing by one engaged in the commission of a felony, though without a predetermined intent to take life, is murder in the second degree. *688
While the crime of murder was a single offense, admitting of no degrees, the case of The People v. Enoch might be deemed a controlling authority; but the moment the legislature changed the law of murder, by creating a higher and lower grade, it seems to me to have lost its applicability, if, indeed, it be not, in spirit, an authority against the ruling of the Supreme Court in the case now under consideration. The chancellor, in maintaining the doctrine that an indictment in the old common law form, charging the crime to have been committed with malice aforethought, was sufficient under the Revised Statutes, says, the object of the legislature was, not to create a new offense of murder, but to restore the ancient common law on that subject, as it existed when the common law form was originally adopted; and, therefore, he holds that the indictment in that form was good for the crime of murder committed under any of the circumstances specified in the three subdivisions defining the crime. If this be so, then the indictment in this case was a perfectly good indictment for murder in the second degree, since the killing, which was murder under the circumstances described in the third subdivision of the fifth section of the Revised Statutes, is now removed from the category of murder in the first degree, and constitutes murder in the second degree. The jury, therefore, having found a general verdict of guilty under an indictment which may be held to charge the crime of murder in the second degree, the court had no right to assume that he was guilty of murder in the first degree, and pass a sentence which only a conviction for such an offense would authorize.
The decision in the case of The People v. Enoch proceeded, in effect, as we have seen, upon the ground that the Revised Statutes, in respect to the crime of murder, had not altered the common law, and that the definition therein given was but the adoption, or introduction into the statute, of the common law description of the crime. It was, consequently, held that the words, "malice aforethought," were so nearly identical with the words, "premeditated design," as to fall within them. But with all proper respect for that decision, which appears to have been the unanimous judgment of the Court *689 of Errors, affirming the judgment of the Supreme Court, it seems to me that both courts overlooked and ignored the most important qualification of the words, "premeditated design," contained in the words following it in the statute, to wit, that the design thus premeditated must be one "to effect the death of the person killed, or of any human being." The ruling purpose must be one to effect death; whereas, the words, "malice aforethought," may be referred to a dominant and controlling purpose having another object, and the death effected occurs as an adventitious result of the original act to which the motive impelled. And this is obviously the case where death is caused by one engaged in the commission of a felony, without any original design to cause the death of any human being whatever.
This view is very clearly presented in the opinion of JOHNSON, J., in The People v. Clark (3 Seld. 385-393), where he says, that "malice prepense had attained a broader meaning than belongs to the term, `premeditated design.' The intent to take life wasnot necessary to constitute malice prepense. Even express malice, or malice in fact, is defined to be a deliberate design of doing any bodily harm to another, unauthorized by law, and by no means necessarily involved an intent to take life. The change, therefore," he adds, "which the statute has effected, by substituting the word `design,' in place of `malice,' is to require what the common law did not require — the existence of an actual intention to kill — to constitute that crime under the first subdivision of the fifth section." And this view is said to be sustained in those States where the crime of murder has been distinguished by statute into murder in the first and second degrees.
The logical sequence from these propositions would seem to be, that, even under the Revised Statutes, the proper mode of framing an indictment for murder would be to follow the very words of the statute, and thus to indicate, by specific averments under which one of the three subdivisions of the fifth section, defining the offense, the alleged crime was committed. But, however that may have been, under the law as it now stands, creating degrees of the crime of murder, the obligation *690 seems to me imperative to pursue the mode thus indicated; and my opinion is, that an indictment for murder must show, on its face, that it is for murder in the first degree, if that is the offense intended to be presented for trial; and that, where the record shows nothing but an indictment which is a good indictment for murder in the second degree, and the jury responds by a simple verdict of guilty, the only sentence that it is competent for the court to pronounce is the one prescribed by the statute for murder in the second degree.
In the case of Dedieu v. The People (
It is no answer to say, that, on the trial in this case, all the proof necessary was given to show that the defendant was guilty of the crime of murder in the first degree, and that we may assume the court instructed the jury properly as to the character of the prisoner's guilt; and, therefore, no injustice has been done. This we cannot know, for this case comes before us without any evidence whatever, but simply upon *691 the record, showing under what indictment the trial took place, and what verdict was rendered — a verdict entirely consistent with an indictment and a trial for murder in the second degree, and where, if any other verdict had been rendered, it would, in my judgment, have been erroneous.
If these views prevail, the judgment of the Supreme Court must be reversed; and the question then arises, what disposition shall now be made of the case? We cannot send back the prisoner for a new trial, since, if there were no other difficulty, the constitutional immunity of the defendant, which forbids his being twice put in jeopardy of life for the same offense, would protect him from the perils of another trial. But I see no objection to remitting the case to the court below, for further action. Our reversal, in fact, touches nothing but the sentence. Upon an indictment, good for the offense of which we must assume the defendant was found guilty, a proper verdict has been rendered. Every thing is right but the sentence; and as that will be greatly mitigated by the position in which the case now stands, the record should be remitted to the Supreme Court, with directions to cause the plaintiff in error to be brought before it, to receive the sentence which the statute authorizes the court to pronounce upon a conviction for the crime of murder in the second degree.
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