Martin v. Goldstein

By express legislative enactment the municipal court of the city of Rochester is to be deemed a justice’s court, and the procedure therein is governed by the provisions of chapter 19 of the Code of Civil Procedure, which relates to courts of justices of the peace. Code Civ. Proe. §§ 3226, 3227; Baird v. Helfer, 12 App. Div. 23 , 42 N. Y. Supp. 484 . This action was therefore properly commenced by a summons made returnable upon a day fixed and specified therein. But the return day, unfortunately for the plaintiff, happened to be on Saturday, and when the defendant appeared it was made known for the first time that he was a member of the Jewish faith, and that as such it was a part of his religion to observe Saturday as “holy time.” It was thereupon made to appear by the affidavit of the plaintiff’s attorney that the return day of his summons was specified through inadvertence, and without any intention of fixing the same on a day kept holy by the defendant, and also without realizing at the time the same was fixed that the return day was Saturday. These facts are uncontroverted, and the sole question, therefore, for this court to determine, is whether or not

“Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person wlio keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which su'ch person is a party to be adjourned to that day for trial, is guilty of a misdemeanor.”

It is contended on behalf of the defendant that upon the undisputed facts in this case the plaintiff has, in making his process returnable on Saturday, rendered himself amenable to the penalty denounced by this section, and that in consequence thereof the process by which he sought to commence this action is absolutely void. It is quite obvious that this contention must prevail, provided the premise upon which it rests is tenable; for, although the statute does not in express terms forbid the return of a legal process upon a day regarded as holy by the party upon whom it is served, yet the penalty which it imposes implies a prohibition, and to all intents and purposes its violation entails the same consequences as would follow if its language were more explicit. Griffith v. Wells, 3 Denio, 226 ; Leavitt v. Blatchford, 5 Barb. 9 -29; Smith v. Joyce, 12 Barb. 21 ; Barton v. Plank-Road Co., 17 Barb. 397 ; Best v. Bander, 29 How. Prac. 489; In re City of Buffalo, 68 N. Y. 167 . The case therefore resolves itself into this one crucial question,—is the plaintiff guilty of the misdemeanor defined by the section above quoted? Upon a careful analysis of the section, it will be discovered that three separate and distinct acts are therein impliedly prohibited: (1) the malicious procuring of the service of any process in a civil action on Saturday upon a person who keeps that day as holy time; (2) the service upon such a person of any process returnable on that day; and (3) the malicious procuring of an adjournment to that day of a hearing in a civil action to which such a person is a party. It will also be discovered that in order to constitute an offense, so far as the first and third subdivisions above mentioned are concerned, the element of malice must be established, whereas such is not apparently the case as regards the second subdivision. And it is consequently argued that a party who unintentionally and inadvertently causes a process to be made returnable in violation of this statute is just as amenable to punishment therefor as if he had acted from a malicious motive. It must be conceded, we think, that, if strict grammatical rules are to be observed in our effort to interpret this statute, the defendant’s contention is entitled to very serious consideration, and the same may be said if the ordinary rules of legal construction are to control; for the use of the word “maliciously” in connection with the first and third subdivisions, and its omission from the second, are certainly’facts which possess considerable significance. But, with this much which is favorable to the defendant’s contention admitted, we are nevertheless persuaded that the statute should not receive the interpretation claimed for it; and this conclusion is reached by adhering to certain well-recognized canons of construction, which may perhaps be termed extraordinary, because not gen-

“Let everything in favor of power be closely construed, everything in favor of Ihe security of the citizen and the protection of the individual be liberally and comprehensively interpreted, for the simple reason that power is power, and therefore able to take care of itself, as well as tending by its nature to increase, while the citizen may need protection.” Lieb. Herm. c. 6, .§ 10.'

Also, see Dwar. St. c. 2; Cheese Co. v. Murtaugh, 50 N. Y. 314 ; Hintermister v. Bank, 64 N. Y. 212 ; Wood v. Railway Co., 72 N. Y. 196 .

With this rule in mind, the plaintiff is in a position to invoke still another, which is, in effect, that the intent of the legislature in enacting a particular law must govern, where such intent is manifest, even though the construction thus given seems contrary to the precise letter of the statute, and furthermore that, where the intent is at all obscure or ambiguous, resort may be had to other parts of the same statute, and even to the title, in order to ascertain its true intent. Smith v. People, 47 N. Y. 330 ; In re Rochester Water Com’rs, 66 N. Y. 413 ; People v. Coleman, 121 N. Y. 542 , 25 N. E. 51 . Turning, therefore, to the section under consideration, we And that it is a part of chapter 1 of title 10 of the Penal Code, which defines crimes against religious liberty and conscience. Now, it is elementary that, to constitute a crime, there must be not only the act itself, but a criminal intent must also accompany the act. Stokes v. People, 53 N. Y. 164 -179; People v. Powell, 63 N. Y. 88 -91. And yet, in order to give to this section the construction claimed for it by the defendant’s counsel, we must hold that the legislature has not only utterly ignored this elementary principle, but, in violation thereof, has declared that while in the case specified malice or intent must exist in order to constitute the crime of procuring a process to be served.on Saturday, or of procuring a civil action to be adjourned to that day, the crime of serving a process which is returnable on Saturday may be committed without any intent accompanying the act. This proposition, it seems to us, has only to be stated, to render its absurdity manifest; for the person who served the summons in this action, as is generally the case, was a public officer, and it is fair to assume that he performed his official duty in this instance without knowing, or having any reason to suppose, that the party served regarded one day of the week as more sacred than an •other. It is true that the defendant is a Jew, and certain racial characteristics may have manifested themselves to such an extent .as to acquaint the officer with that fact; but there are other religions than the Jewish which require the observance of the seventh day of the week as holy time, and consequently, if the rule contended for is to obtain, an officer must somehow ascertain in every instance, before serving a process, that the party upon whom it is to be served •does not come within the favored class; otherwise he renders himself .amenable to the statute. It is inconceivable that the legislature in

Judgment reversed, with costs. All concur, except WARD, J., dissenting.