Huber v. People — 44 How. Pr. 375

Majority

p. 375

COURT OF APPEALS.

William Huber, plaintiff in error, agt. The People, defendants in error.

Argued February 29, 1872;

decided March 27, 1872.

Headnote

The act of 1870 (ck., 383), known as the (New York) City Tax Levy Laws, providing and authorizing the court of special sessions of that city to be held by less than two police justices, is unconstitutional and void.

Therefore, all criminals convicted and sentenced in that court by one justice are entitled to be discharged.

Henry Wehle for plaintiff in error.

A. S. Sullivan for defendants in error.

The conviction of the plaintiff in error of the offense of petit larceny, in the court . of special sessions, in the city of New York, held by a single police justice, is sought to be sustained by a provision of the act of 1870, known as the city tax levy laws of 1870 (ch., 383). It. is conceded that if, for any reason, that act was invalid, and does not authorize such court to be held by less than two justices, the court was not properly constituted, and- the conviction must be reversed.

Prior to 1865, the court of special sessions in New York was held by any three of the police justices of that city, and could not be held by any less number (Laws of 1858, ch., 282, § 8; in re Devine, 21 How., 80 ).

In 1865 the court was authorized to be held by the two police justices elected to the second and sixth judicial districts of the city, with power in the governor, in case oí

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the death, removal from office, or*. resignation of either of said justices, to designate one of the other police justices of the city to hold said court; and in case of the sickness or disability of either of the said two police justices, it was declared to be lawful for the' other to hold said court (Laws of 1865, chap. 563).

In 1870 the act of 1865 was repealed, and all acts and parts in force at the time of the passage of the said act, relative to said court of special sessions, repealed and reenacted, and declared to be thenceforth in full force and effect (Laws of 1870, chap., 30). The city tax levy act was subsequently enacted by the same legislature (Laws of 1870, chap. 383). The forty-ninth section of the latter (S. L., p. 917) declared that the court should be held by two police-justices of the city, to be designated by the mayor, and in case of any disability of either of the two police justices to hold court, it was declared to be legal for the other to hold it while such .disability continues. The acts passed in 1871 (ch. 302 and 438) do not affect the question before us. They did not change the. constitution of the court, except as they conferred power upon the mayor to designate a judge to hold the court in case of the sickness or disability "of the police justices.

By chapter 30 of the laws of 1870, the act of 1858, constituting the court of special sessions in the city of New York, was repealed, not simply as the legal result of the repeal of the law of 1865, but it was in terms repealed and re-enacted as the law in force, and at the time as of the passage of the revivor. Tne only question, then, is as. to the validity of the provision in chapter 383 of the . laws of 1870, recognizing and reconstituting the court.

The constitutional prohibition upon the legislature in respect to private and local bills, has come so often under re- - view, and its purposes and objects, as well as its operation and effect, been judicially declared, that nothing remains but to apply the principles of the adjudications, and give effect

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to plain intent of the provisions as they come. It is declared that no private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the 'title. This is absolute, and every act and part of an act passed in disregard of it, is void. The enactment is not merely directory, to be obeyed or not, as the legislature may think proper, but is mandatory, and a compliance with it is necessary to the validity of any act coming within its lines (People agt. Hill, 35 N. Y., 449 ; People agt. Supervisors of Chatauqua, 43 N. Y., 10 ).

The constitutional prohibition includes all acts, whether local or private; and if either local or private, the requirements must be complied with (People agt. Allen, 42 N. Y., 378 ).

If a bill is local in its operation and effect, although public in its character, it, is within the constitutional enactment. The provision in the act of 1870 was public, as it concerned the administration of the criminal laws, and the trial and punishment of offenders; and provided for the organization and construction of a court of criminal jurisdiction; but it was local, inasmuch as it related to a court peculiar to the city of New York, with jurisdiction only co-extensive with the limits of that city, and with officers connected with its boundaries. An act regulating the duties of a public officer, under the general laws of the state, if limited in its operation to a part of the state, or to a single county, is local, and must be passed in th!e form prescribed by the Constitution, although the subject matter of the enactment is public and affects public interests (Gaskin agt. Meek, 42 N. Y., 186 ; People agt. O’Brien, 38 N. Y., 193 ). The act in which the section relating to the organization of sessions in New York, is found is a local act in all its parts, and is in no respect, or in any of its provisions, general, although all its provisions are public. This section does not differ from other parts of the act. In this respect the act is such as is annually passed by the legislature, and is known as the City Tax Levy. A

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similar act is annually passed for the county of New York, known as the County Tax Levy. The one is entitled “ An act to make further provision for the government of the county of New York,” (laws of 1870, ch. 382). The other, that under consideration, “ An act to make further provision for the city of New York,” (laws of 1870, ch. 383.) The purpose and object of each is to provide for the expenditures of the city and county governments respectively; they direct the levy of taxes and make provision for the disbursements for the sums raised ; the titles of the acts are apt and expressive of their purpose and object, indicating clearly that they are revenue acts—acts- providing ways and means for the support and carrying on of the government of the city and county as organized; the title of the act does not indicate an intent to change the forms or alter the character of the city government in any way, or to amend the charter, when the legislature intend that the title expresses the intent and characterizes the act (See Laws of 1870, ch. 127 ; Laws of 1871, chaps. 573, 574). To provide, is to procure beforehand for future use, to furnish, to supply, to procure supplies, or means of defense ; and to make provision, is to provide means or supplies. The merchant makes provision for his bills, by putting the drawer in funds to pay them. Provision is made for the poor, by raising moneys for their support. Provision is made for the government, by placing at its disposal the ways and means for the payment of its officers and its necessary expenses. It would do violence to language to hold, that an act to make provision for the city government was an act to create, to reorganize, or to change the government, or its organic law, in any respect.

The very words recognize a city government as in existence, for the support of which provision is to be made. The governmental organization, as it exists, is to be provided for, by supplying it wi:h the proper means for its necessary disbursements and expenditures. The organization of the court of sessions, anew in the city of New York, had no connec

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tion with the provision for the government of the city contemplated by the title of the act, and the section designed to accomplish such re-organization was, therefore, void. It is to be regretted that the result of this conclusion may tend to inconvenience in the discharge of some who are undergoing the punishment due to their crimes, but it is the right of all to have the law declared as it is, whatever may be the consequence, and a greater evil to allow a practical abrogation of a plain, constitutional requirement, by yielding to a supposed necessity. The tendency, and the natural tendency ot legislation is to make certain acts receptacles for enactments of all kinds, especially for such as might not meet with favor standing by themselves. The object of the Constitution was to prevent this, and full effect should be given to its language and salutary intent. The judgment of the supreme court and of the special sessions must be reversed