129 N.Y.S. 1099 | New York Court of General Session of the Peace | 1911
This case is brought here on appeal from a judgment rendered by a magistrate, at the third district City Magistrates’ Court, on the 15th day of October, 1910. From the return it appears that William J. Enright, of the detective bureau of the police department of the city of New York, charged the defendant with jostling against pedestrians and slapping his hands on the person of Samuel Gordon, who, with a number of other persons, was standing alongside of a pushcart in Orchard street, in the borough of Manhattan, city of New York. After trial, in which the defendant was represented by counsel, judgment was rendered by the magistrate that the defendant committed an act which tended to a breach of the peace, as defined under section 1458 of the Consolidation Act of the city of New York (Laws of 1882, chap. 410). He was
First. Since the enactment of the Inferior Criminal Courts Act of the city of New York, the offense theretofore known as “ disorderly conduct tending to a breach of the peace ” has not been continued in such manner as to vest the city magistrates with power to convict for such offenses.
Second. The sentence of the defendant is indefinite, because it does not appear whether he was sentenced under subdivision 1 or 2 of section 88 of the Inferior Criminal Courts Act of the city of New York.
Third. If sentenced under subdivision 2 of section 88 of the Inferior Criminal Courts Act, such sentence is inoperative, because the punishment provided under subdivisions 1 and 2 contravenes the Fourteenth Amendment of the Constitution of the United States.
Fourth. Generally for errors committed upon the trial.
Much learning and research have been displayed by counsel for the appellant on the points urged for a reversal of this judgment; much wider range, perhaps, has been taken than the cause requires. Most of the questions depend, I think, upon a fair and reasonable construction of the statutes relating to “ disorderly conduct tending to a breach of the peace.” The points argued for a reversal of the judgment for errors committed on the trial I regard as neither substantial nor tenable. The magistrate saw and heard the witnesses. The proof was satisfactory to him that the defendant placed his hands on the person of Samuel Gordon and that he was seen to stretch one of his hands in the direction of his pocket. The magistrate, therefore, was justified in inferring that his intention was to pick a pocket, and in finding that the act was one which tended to a breach of the peace.
It is argued that under the Inferior Criminal Courts Act of the city of New York (Laws of 1910, chap. 659) the offense of “ disorderly conduct tending to a breach of the peace ” is not one of which a person may be tried or convicted in the migistrates’ courts.
Prior to January 1, 1898, the city of New York was governed by its ancient charters and the laws of the State of New York. Under sections 1458 to 1463 of the Consolidation
Under the Greater New York charter (Laws of 1897, chap. 378, as amended) section 1458 of the Consolidation Act was continued in operation, and the offense of “ disorderly conduct tending to a breach of the peace ” extended within the limits of the greater city of New York as consolidated. People ex rel. Clark v. Keeper, etc., 176 N. Y. 465; People ex rel. Smith v. Van De Carr, 86 App. Div. 9; People ex rel. Frank v. Davis, 80 id. 448. Under sections 707, 707a, 708, 710 and 711 of the Greater New York charter provision was made for the punishment of the offense just as is made in the Inferior Criminal Courts Act in sections 88, 90, 91 and 92. The sections of the charter, however, did not define the meaning of the offense “ disorderly conduct tending to a breach of the peace; ” neither do sections 88, 90, 91 and 92 of the Inferior Criminal Courts Act. Under section 120 of the Inferior Criminal Courts Act sections 707, 707a, 708, 710 and 711 of the Greater New York charter were expressly repealed. It is, therefore, argued that the enactment of the new law eliminated the operation of section 1458 of the Consolidation Act; in other words, that under its provisions there is no such offense as that- of “ disorderly
Upon the coming into existence of Greater New York this question arose in the Appellate Division of the first and second departments. It was held that sections 1458 and 1459 of the Consolidation Act were continued under sections 1608 and 1610 of the charter; that otherwise sections 707 to 712 of the charter, providing a new system of cumulative punishment for disorderly conduct, would be utterly meaningless upon any theory that the Consolidation Act sections had been repealed. People ex rel. Smith v. Van De Carr, supra; People ex rel. Frank v. Davis, supra. It is not pretended that section 659 of the Laws of 1910 expressly repealed section 1458 of the Consolidation Act. Assuredly the provisions of section 88 of the Inferior Criminal Courts Act are without meaning if section 1458 of the Consolidation Act was repealed.
'Laws are presumed to be passed with deliberation, and with a full knowledge of all existing statutes on the same subject. It is, therefore, reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate a former law to which it expressly referred, and which is necessary to give vitality to it. The intention of the Legislature to combine section 1458 of the Consolidation Act with the provisions of the Inferior Criminal Courts Act is obvious, because in section 79 of the Inferior Criminal Courts Act there is an express reference to it. The Legislature may regulate a power granted by a previous statute not inconsistent with it. Pepeáis by implication are not favored in law, unless the repugnancy between the two is irreconcilable. The new law does not. take away any right nor grant any substantially new power.
Under well-settled principles of construction both of these statutes should be harmonized, if possible, with what is reason
It is assigned that the sentence is void because it is said to be uncertain as to whether it was imposed under subdivision 1 or 2 of section 88 of the Inferior Criminal Courts Act. The answer is that the sentence was for a term of six months flat, and the return is that it was explicitly inflicted under subdivision 2 of section 88. Was the sentence, then, in contravention of the Fourteenth Amendment to the Constitution of the United States? The equal protection of the laws as used in the Fourteenth Amendment to the Constitution of the United States means equal security under them to every one under similar terms in his life, liberty, property and pursuit of happiness. It purposes to exclude everything that is unequal, arbitrary and unfair respecting the rights of citizens. Even a convict has all the rights of a citizen except as they are limited by the law and the proceedings for the proper execution of
“ Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.
“ In the execution of admitted powers unnecessary proceedings are often required which are cumbersome, dilatory and expensive; yet, if no discrimination against any one be made and no substantial right be impaired by them, they are not obnoxious to any circumstantial objection. The inconveniences arising in the administration of the laws from this cause are matters entirely for the consideration of the State; they can be remedied only by the State.”
It is an established canon of interpretation that every statute is presumed to be constitutional and every intendment is in favor of validity. When a statute is challenged as in conflict with the fundamental law a clear and substantial variance must be found to exist to justify its condemnation.
The act out of which this question has been raised I confess is fruitful of legal points. It is to be regretted that in framing laws care is not always taken to write them with such precision and fullness that every expression shall, like rays of light, carry clearness and conviction to the mind of the reader. Heretofore the punishment of “ disorderly conduct tending to a breach of the peace,” as provided for by the Consolidation Act and by the charter, was threefold: First. A fine not exceeding ten dollars; Second. Commitment to the workhouse for a term of six months; Third. Commitment for a term of six months in default of a peace bond. People ex rel. Reynolds v. Warden, 44 Mise. Rep. 149. These forms of punishment have been held to be constitutional in People ex rel. Abrams v. Fox, 11 App. Div. 245. The defendant had been tried and convicted by one
Ho substantial right of the prisoner is invaded. The Legislature might have omitted any or all of them. The judicial functions are fully left to the court. The trial, conviction and sentence are unquestionably legal.”
Section 88 of chapter 659 of the Laws of 1910, while reenacting the three different forms of punishment heretofore mentioned, adds another under subdivision 2 of the act, namely “ the magistrate may impose a penalty as follows: ”
“ Commit the person so convicted in the boroughs of Manhattan, Brooklyn and the Bronx to the workhouse and in the other boroughs to the county jails therein for a definite period not to exceed six months.”
The legislation with reference to the minor offense of “ disorderly conduct tending to a breach of the peace” has been progressive in order to meet the changed conditions and grow
In construing the amendment we must consider its design and practical tendency, its reasonableness and necessity. A law is not to be pronounced unwise nor condemned as unreasonable because it may occasion some evil. All general laws are liable to this objection, yet without general laws society could not be governed. Whenever a law is found to be a dead letter, or productive of little or no good, or to- cause much evil, it well deserves the attention of its makers. Until it is repealed it is binding upon its subjects.
Entertaining this opinion of the object and necessity of subdivision 2, supra, the court would fail in its duty to the public did it not say that it deemed it to be a wise and prudent addition to the law. To the objection on constitutional grounds that the defendant may be subjected under this power to an infamous punishment for six months it is sufficient to observe that the proceedings before the magistrate is this case are agreeable to the practice in such cases. A party may be tried and convicted before a magistrate of minor offenses to which is annexed infamous punishment. He is entitled to an appeal
Omission to dwell upon the various minor arguments urged by the learned counsel for the appellant must not be taken as evidence that they have not been considered. All of the points have been carefully examined.
¡No substantial ground appearing upon which this conviction should be disturbed, it follows from the views expressed that •the judgment must be affirmed.
Judgment affirmed.