People v. Coughtry — 12 N.Y.S. 259

Majority

p. 259

People v. Coughtry.

(Supreme Court, General Term, Third Department.

December 12,1890.)

Headnote

Change of Venue—Jurisdiction.

The provision of Laws N. Y. 1888, c. 577, § 3, that suits for violations of the game laws “shall he prosecuted to determination in the county where they shall he commenced, unless, for good cause appearing, a discontinuance shall be directed by the chief game and fish protector, ” does not deprive the supreme court of its power, under the constitution, to change the place of trial of such a suit to the county in which the offense is alleged to have been committed from an adjoining county in which the action was brought, the statute authorizing suit in either county.^[1]

Appeal from special term, Albany county.

Action in the name of the people of the state against William H. Coughtry, for penalties for violations of the game laws. From an order changing the place of trial from the county of Columbia to the county of Albany, on the ground of the convenience of witnesses, plaintiff appeals.

Argued before Landon and Mayham, JJ.

A. B. Gardenier, for appellant. Franklin M. Danaher, for respondent.

The action is for the recovery of penalties for alleged violations, by the defendant, of the game laws. The violations are alleged to have been committed in the county of Albany. The action was brought by the district attorney of Columbia county, and the place of trial laid in that county. The appellant’s sole contention is that, under the statute, the court had no power to change the place of trial. Section 3, c. 577, Laws 1888, provides that “such suits shall be commenced on the order of any game or fish protector, in the name of the people, by any district attorney where the offense shall be alleged to have been committed, or by the district attorney of an adjoining county; and such suits shall be prosecuted to determination in the county where they shall be commenced, unless, for good cause appearing, a discontinuance shall be directed by the chief game and fish protector.” Unquestionably, the intent of the legislature was to authorize, in proper cases, these actions to be brought in a county adjoining that in which the violation of the law occurred, but we do not think the legislature, by the provision, “ and such suits shall be prosecuted to determination in the county where they shall be commenced,” intended to deprive the supreme court of the power to change the place of trial from the adjoining county to the county where the alleged offense occurred. The jurisdiction to change the venue, in actions where the convenience of witnesses or the ends of justice demand it, is ancient and useful. The learned counsel for the appellant points out in his instructive brief its antiquity, and the bench and bar would probably unite in attesting its usefulness. The constitution, art. 6, § 6, confers upon the supreme court “general jurisdiction in law and equity.” The eighth section of the same article provides that, “except as herein otherwise provided, the legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and equity that they have heretofore exercised.” The power “to alter and

p. 260

regulate” implies that the old jurisdiction shall, in some degree, continue in an altered or regulated form. Many cases affirm the inability of the legislature to abridge the general jurisdiction of the court. De Hart v. Hatch, 3 Hun, 375 , 380; People v. Supervisors, 2 N. Y. Supp. 555 ; Brooklyn v. New York, 25 Hun, 612 ; People v. Nichols, 79 N. Y. 590 ; Alexander v. Bennett, 60 N. Y 206 ;. Popfinger v. Yutte, 102 N. Y. 42 , 6 N. E. Rep. 259 ; Hutkoff v. Demorest, 103 N. Y. 380 , 8 N. E. Rep. 899 . Ordinarily an action to recover a penalty must be tried in the county where the cause of action arose. Code Civil Proc. § 983. Where the legislature authorizes such actions tobe brought in another county, the propriety of the jurisdiction of the court to change the place of trial to the county where the cause of action arose, if justice requires it, would seem to be clear. A legislative attempt to deprive the court of it would be an attempt to replace judicial functions with legislative mandates. We need pursue the subject no further than to say that we decline to impute to the legislature an intention, by the use of the language here employed, to deprive the court of its accustomed jurisdiction. The real intent of the act is manifest when the whole provision is read: “Such suits shall be prosecuted to determination in the county where they shall be commenced, unless, for good cause appearing, a discontinuance shall be directed by the chief game and fish protector.” The main intent is to prevent a discontinuance except under the direction of the chief game and fish protector. If there had been an intention to abridge the ¡jurisdiction of the court, we think it would not have been disguised under an enlargement of the powers of this officer.

Order affirmed, with $10 costs and disbursements.