Lowman v. Billington

On the 3d day of December, 1907, this plaintiff recovered a judgment in the Supreme Court against-Max J. Pedrick, Joseph Kostecki, and Nellie Pedrick, in the sum of $643.50, damages and costs, for wrongfully and unlawfully selling to her husband intoxicating liquors after having received written notice forbidding such sale.

On the 5th day of December, 1907, an execution on said judgment was issued against the property of the defendants in said action, which was returned wholly unsatisfied, and on the 16th day of December, 1907, an execution against the person of said Max J. Pedrick was issued on said judgment, and delivered to this defendant as sheriff of Steuben county, whereby he was required to arrest the said Max J. Pedrick and commit him to the Steuben county jail until he should pay said judgment, or until he was discharged according to law. After receiving said execution, this defendant arrested said Pedrick, and committed him to the Steuben county jail, and had him in custody up to the 28th day of December, 1907, when a writ of habeas corpus, granted by the surrogate of Steuben county, acting as county judge, was- served upon this defendant commanding him to bring said Max J. Pedrick before the said surrogate, acting as county judge, at chambers in the village of Bath, N. Y. On that date, in obedience to the requirements of said writ, this defendant produced the body •of Max J. Pedrick before the surrogate of Steuben county, acting as county judge, and made return that said Pedrick was in his cus-, tody by virtue of a body execution' against said Pedrick which had been issued by E. C. English, attorney for the plaintiff in the action against Pedrick et al., above referred to, and that he was still in defendant’s custody under said mandate.

It appears that no notice of the application for the writ of habeas -corpus had been served on the plaintiff or her attorney, and, to give the plaintiff ample opportunity to be represented and heard in said habeas corpus proceedings, the said surrogate, acting as county judge, when the aforesaid writ was returned, December 28, 1907, adjourned the proceedings until the 2d day of January, 1908, at the courthouse in the city of Corning, and directed that notice of the adjournment of the habeas corpus proceedings should be served personally upon E.

Plaintiff now brings this action against the sheriff for damages,, claiming" that the defendant as such sheriff permitted said Max J. Pedrick to escape, and alleging that the orders of the surrogate, acting-as county judge, both with reference to bringing Pedrick before him, and also ordering him in the custody of his counsel, were absolutely-null and void because said surrogate had no power or authority to-issue said orders, or either one of them. The plaintiff further claims that the writ of habeas corpus was improvidently granted; that the-petition upon which it was granted was entirely insufficient.

First, did the surrogate, in making the orders above referred to, act without authority? Prior to January 1, 1884, the duties of county judge and surrogate in Steuben county had been performed by one-person; but by chapter 309, p. 464, Laws 1883, the office of surrogate of Steuben county was created, and it was separate from the office of county judge, and the officer who performed the duties of surrogate-was to be separate from the county judge. That law (chapter 309, p. 464, Laws 1883) consisted of four sections. The first section provided' that after January 1, 1884, an -officer to perform the duties of surrogate of Steuben county should be chosen separate from the county-judge. Section 2 of that act was as follows:

“The said surrogate shall, within said county, possess and upon proper application must exercise all powers conferred by law upon the county judge, at chambers or out of court.”

Section 3 of said act provided for the election of the surrogate at the general election in 1883, and section 4 fixed the salary to be paid to the surrogate, and also fixed the salary of the county judge.

The contention of the plaintiff is that long before the surrogate granted the writ of habeas corpus, above referred to, chapter 309, p. 464, Laws 1883, had been repealed, and that consequently the surrogate’s granting of said writ, and all of his acts in said habeas corpus proceedings, were without authority and were null and void. If it is true that said act was repealed, as claimed by plaintiff, then the surrogate’s orders would be of no force, and this defendant could not avoid liability for damages for an escape, for, if the surrogate’s orders were made without authority and were void, they would not protect the sheriff, however innocent he may have been in the transaction. I am compelled to disagree with the learned counsel for the plaintiff in his contention that chapter 309, p. 464, Laws 1883, had been entirely repealed when the surrogate entertained the habeas corpus proceedings.

The fourth section of chapter 309, p. 464, Laws. 1883, was distinctly repealed by chapter 686, p. 1799, Laws 1892. By chapter 548, p. 625, Laws 1896, which was a repealing act, a great many statutes were repealed. When an entire act was repealed, the word “all” was printed in the last column of the repealing act. When certain sections of an act were repealed, those sections were distinctly specified, as, for instance, Laws 1882, c. 409, pp. 607, 608, §§ 68, 69, were repealed, both being specified; but with reference to chapter 309, p. 464, Laws 1883, which plaintiff contends was repealed by chapter 548, p. 625, Laws 1896, it was printed as follows:

Laws of— Chapter. • Sections.

1883 309 1-3.

Plaintiff contends that it was the legislative intent to repeal sections 1 to 3, inclusive, and the defendant disputes that idea. This very repealing act (chapter 548, p. 625, Laws 1896)- distinctly states that of the laws enumerated that portion specified in the last column is repealed. The Legislature did not specify section 2 of chapter 309, p. 464, Laws 1883, as being repealed. It specified sections 1 and 3, and they were repealed by that act. If it had been the intention of the Legislature to repeal section 2, the figure 2 would have been placed between the figures 1 and 3, instead of a hyphen.

To further show that it was not the intention of the Legislature to repeal section 2 of chapter 309, p. 464, Laws 1883, because it was not specified, reference is had to the repealing section of chapter 908, p. 890, Laws 1896, passed by the same Legislature, with reference to chapter 659, p. 950, Laws 1886, that repealed “sections 1, 2, 3, 5, 6,” specifying the sections repealed as here indicated. There is no question as to what the Legislature meant in that matter. It meant to repeal sections 1, 2, 3, 5, and 6 of chapter 659, p. 950, Laws 1886. By the same act it repealed certain portions of chapter 409, p. 701, Laws

Laws of Chapter Section

1883 309 v All.

It must be borne in mind that the fourth section of chapter 309, p. 464, Laws 1883, was repealed by chapter 686, p. 1799, Laws 1893, and if it was the intention of the Legislature to repeal the remaining three sections of that act by chapter 548, p. 635, Laws 1896, they would have used the word “all,” showing that the act was all repealed, or else they would have distinctly specified the sections that were to be repealed, including section 3. They specified sections 1 and 3, but did not specify section 3; but -the fact that, by the Consolidated Laws passed by the Legislature of 190-9, all of chapter 309, p, 464, Laws 1883, is repealed, requires the construction that section 3 of chapter 309, p. 464, Laws 1883, had never been previously repealed, but was in full force at the time the surrogate of Steuben county, acting as county judge, entertained the habeas corpus proceedings above referred to. The Legislature never having specified that section 3 was repealed, the only way it could be held that it was repealed would be by implication, and repeals of statutes by implication are not favored by the courts. 13 Abb. Cyc. Dig. 228; Mark v. State, 97 N. Y. 572 ; People ex rel. Olcott v. House of Refuge for Women, 22 App. Div. 254 , 47 N. Y. Supp. 767 .

7It cannot be claimed that this plaintiff has been harmed any by the intervention of the surrogate. The only difference was that she had Pedrick imprisoned under the body execution for six months from December 39, 1908, instead of from December 38, 1907. He evidently had no property and could not pay the judgment, and the court should not construe this repealing clause of chapter 548, p. 635, of the Laws of 1896, so as to work mischief and injustice to the defendant who acted in entire good faith in turning Pedrick over to the custody of his counsel upon orders of a court of competent jurisdiction which appeared perfectly regular upon their face. People v. Mallory et al., 46 How. Prac. 381, opinion. Moreover, I am assisted in the construe

Chapter 309, p. 464, Laws 1883, was a special law, local in its application, for it had reference to the office of county judge and surrogate in Steuben county, and it cannot be deemed amended or affected by any general legislation repealing statutes, unless the intention is perfectly plain. Mahon v. City of New York, 29 Misc. Rep. 251 , 60 N. Y. Supp. 541 . And, as above stated, it is not plain here that the Legislature intended to repeal section 3 of the statute under consideration; but the very fact that it was repealed by the Consolidated Laws of 1909, together with the fact that the repealing section of chapter 548, p. 635, Laws 1896, does not specify section 3 as one of the sections repealed, are sufficient reasons to hold that section 3 under consideration was not repealed, and was never intended to be repealed until the passage of the Consolidated Laws of 1909. In addition to that, chapter 548, p. 635, Laws 1896, was a general repealing statute, and it is a universal rule of statutory construction that the later statute, general in its terms, will ordinarily not affect the special provisions of an earlier special statute; the presumption being that the special statute is to be construed as remaining.an exception to the general statute, unless the legislative intent to repeal the prior statute is so clear and unmistakable that construction by the court is unnecessary. 36 Am. & Eng. Enc. of Law (2d Ed.) 739.

So, for the reasons above stated, I am clearly of the opinion that chapter 548, p. 625, Laws 1896, did not repeal section 2 of chapter 309, p. 464, Laws 1883, but that said section was in full force at the time the surrogate entertained the habeas corpus proceedings in question, and, that being so, he had the same powers as the county judge would have had under similar circumstances, and the' latter would have had the same power as a justice of the Supreme Court, at chambers or out of court, to entertain the habeas corpus proceedings if they had .been brought before him. Code Civ. Proc. §§ 241, 772.

It being clear that the surrogate, acting as county judge, had authority to entertain the habeas corpus proceedings, the next question raised by the plaintiff is as to the sufficiency of the petition, writ, etc. So long as the surrogate had power to entertain the habeas corpus proceedings, his orders, regular on their face, and which have been acted on in good faith by a ministerial officer, will be a protection to that officer, even though erroneously granted. Wilckens v. Willet,

The case Matter of Leggat, 162 N. Y. 437 , 56 N. E. 1009 , remed ■upon by plaintiff, is not an authority to sustain his contention here, for the reason in that case the county judge discharged the prisoner in the habeas corpus proceedings without giving the person interested in continuing the imprisonment any notice whatever. In the case at bar the surrogate was quite particular, when he ascertained that the writ of habeas corpus had been obtained without notice to the plaintiff or her counsel to adjourn the proceedings, and required immediate notice to be given to plaintiff’s attorney, not only of the fact that the proceedings had been instituted, but of the day to which they had been adjourned, so that he might appear and protect the interests of his client, and such notice was served in pursuance of the order of the ■surrogate, and on the adjourn day plaintiff was represented by counsel, and made various objections to the regularity of the proceedings. The surrogate did not undertake to discharge the prisoner, and never discharged him, but simply placed him in the custody of his counsel during the pendency of the proceedings, and when he dismissed them remanded him to the custody of the sheriff, and he was returned to the custody of that officer, after considerable delay it is true, but he was returned and was kept in the custody of the sheriff in the jail of '■Steuben county, or on its limits, until he was legally discharged.

The difference between the Leggat Case, supra, and the case at bar, is so marked that it can have no bearing here. In that case the county judge discharged the prisoner; the person interested in the imprisonment never having received any notice whatever of the habeas corpus proceedings. In the case at bar the plaintiff did have notice of all proceedings after December 28, 1907, and the surrogate never discharged the prisoner, but after dismissing the habeas corpus proceedings remanded him to the custody of the sheriff in the county jail from whence he had been taken under the writ of habeas corpus. By the petition in the habeas corpus proceedings, Max J. Pedriclc had -challenged the power of the court to render the judgment which had been rendered against him, and issue a body execution thereon, and he had a right to inquire into the proceedings and to see whether the ■execution was properly issued by way of habeas corpus. People ex rel. Tweed v. Liscomb, 60 N. Y. 559 , 19 Am. Rep. 211 ; People ex rel. Frey v. Warden, etc., 100 N. Y. 24 , 2 N. E. 870 ; People ex rel. v. House of Mercy, etc., 128 N. Y. 180 , 28 N. E. 473 ; People ex rel. Burroughs v. Willett, 15 How. Prac. 210.

It is unnecessary to pass upon the'various questions raised as to the .■sufficiency of the writ of habeas corpus, and the petition upon which it was issued, for the surrogate has already passed upon those questions, and so long as the writ served upon the sheriff and the order of December 28, 1907, directing him to place the prisoner in the custody of his counsel, were regular on their face, and there was nothing about them to put the sheriff on his inquiry, and he acted upon them in good

After a thorough examination of all the authorities bearing on this case and of the facts as disclosed by the evidence, I am convinced that the position of the plaintiff in this case is untenable, that, at the time of the institution of1 the habeas corpus proceedings in the case of Low-man v. Pedrick et ah, section 2, c. 309, p. 464, Laws 1883, had not been repealed, but was in full force, and the surrogate had power, acting as county judge, to entertain the proceedings and to make the order of December 28, 1907, placing the relator'in the custody of his counsel during the pendency thereof, and this defendant having acted in good faith under orders served upon him, which were regular on their face, and which had been granted by a court having authority to issue them, must be protected, and the plaintiff has no just cause of action against him, for there was no escape of the prisoner committed to his care under the body execution.

If I am correct in these conclusions, it follows that the plaintiff’s complaint must be dismissed, and it is dismissed, with costs.

Findings may be submitted and judgment entered accordingly.