152 N.Y.S. 445 | N.Y. App. Div. | 1915
The appellant challenges the jurisdiction of a city magistrate of the city of New York to try him for a violation of a statute relating to the Sabbath, in that he did work neither necessary nor charitable on Sunday. (Penal Law, art. 192.) The appellant’s single contention is that, as the Court of Special Sessions of said city has in the first instance exclusive jurisdiction to hear and determine all charges of misdemeanor committed in
There may be found good reasons why the provisions of the general statutes relative to summary proceedings before justices of the peace relative to Sunday laws should not be repealed. Justices of the peace are constitutional officers provided for throughout the State (N. Y. Const, art. 6, § 17. See, too, Town Law [Consol. Laws, chap. 62; Laws of 1909, chap. 63], § 103; Village Law [Consol. Laws, chap. 64; Laws of 1909, chap. 64], art. 7), and, therefore, in more sparsely settled parts of the State it seems entirely wise that there should be some officer who could deal summarily with such an offense as Sabbath breaking.
Although the offense is essentially rather against police regulations than a.crime (Steinert v. Sobey, supra; People ex rel. Burke v. Fox, 205 N. Y. 490), and although it may be said that it is somewhat inconsistent with the general provisions of section 2 of the Penal Law to constitute an act, which is not a crime, a misdemeanor, nevertheless the fact is that the Legislature has seen fit to thus constitute it. (Penal Law, § 2142.) It had the power so to do as to any act committed or omitted in violation of the public law forbidding or commanding it (Commonwealth v. R. I. Sherman Manuf. Co., 189 Mass. 76), and this power can be limited by the Constitution only. (People v. West, 106 N. Y. 295.)
I think that the judgment must be reversed.
Thomas, Stapleton, Eioh and Putnam, JJ., concurred.
Judgment of conviction reversed. Order to be settled before the presiding justice.