People v. Jaehne — 3 N.Y. St. Rep. 11

Majority

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People of the State of New York, Resp’ts, v. Henry W. Jaehne, App’lt.

(Court of Appeals,

Filed October 5, 1886.)

Headnote

1. Criminal law—Bribery—New York city common cotjncilmen—Consolidation act op 1883—Penal Code, § 73.

Section 58 of the consolidation act, passed July, 1883, is superseded by the Penal Code, section 73, and the crime of bribery committed by a member of the common council of the city of New York is defined and made punishable by that section.

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2. Same—Effect of § 2143 of consolidation act on Penal Code.

The provision in section 2143 of the consolidation act, that the Penal Code (although enacted before the consolidation act) is “to have the same effect” upon the consolidation act “as if it had been passed after that act,” does not transcend the power of the legislature. It subordinates the consolidation act to the Penal Code wherever the two are in,conflict.

8. Same—Penal Code embraces provisions as to bribery of all public-officers.

The sections of the Penal Code as to bribery are so comprehensive as to-include within their provisions all public officers within the state of whatever character or grade.

4. Same—How far charter acts repealed by Penal Code.

Section 725 of the Penal Code was not intended to except from its operation all penal provisions in charier acts, and that they should remain in force unaffected by the Penal Code. It is to he construed as saving only those penal provisions of- charter acts which are not covered by the provisions of the Penal Code. Rapallo and Earle, JJ., dissenting.

5. Confession—Additional proof—Code Grim. Pro,, § 395.

Where, on the trial of a person for a crime, in addition to his confession there is proof of circumstances which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury for non-compliance with the requirements of the statute. (Code Grim. Pro., § 395.)

6. Corpus delicti, proof of.

The words of the statute, “ additional proof that the crime charged has-been committed,” seems to imply that the confession is to be treated as evidence of the corpus delicti, though insufficient without corroboration to-warrant a-conviction.

Appeal from a judgment of supreme court, general term, First department, affirming a judgment of the court of oyer and terminer, for New York city and county,-convicting defendant of the crime of bribery.

In the year 1884, defendant was a member of the board of aldermen of the city of New York, and, as such, a-member of the common council of that city. The indictment charged that in the month of August, 1884, there was pending before said board of aldermen an application of a corporation, the Broadway Surface Railroad, for the consent of said board, as provided by law, to construct and operate a railroad on Broadway, in the city of New York;, that at the time aforesaid the defendant agreed, with some-person to the grand jury unknown, to receive for his vote and influence in favor of said application the sum of $20,000.

Roger A. Pryor and Richard S. Newcomhe, for app’lt; Randolph B. Marline, district attorney, and DeLancey Nicoll, assistant district attorney, for resp’t.

The principal question on this appeal is, whether the crime of bribery, committed by a member of the common council of the city of New York, is punishable under the Penal Code, or only uncler the New York city

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consolidation act of 1882. The materiality of the question presented lies in the fact that the defendant was indicted and convicted of bribery, as a member of the council of the city of New York, under section seventy-two of the Penal Code, and was sentenced to imprisonment in the state prison for the term of nine years and ten months, pursuant to the provisions of that section, whereas, if he was punishable under the consolidation act of 1882, the maximum punishment by imprisonment could not have exceeded two years in the penitentiary.

After a careful investigation, we have reached the conclusion that section fifty-eight of the consolidation act is superseded by section seventy-two of the Penal Code, and that the crime of bribery committed by a member of the common council of the city of New York is defined and made punishable by that section. In determining this question, it is to be assumed that the Penal Code was the later enactment, although in point of fact it was passed prior to the consolidation act.

The Penal Code was passed July 26, 1881, and took effect December 1, 1882. The consolidation act was passed July 1, 1882, and took effect March 1, 1883; but section 2143 of the consolidation act expressly declares that, for the purpose of determining the effect of this act upon other acts, except the Penal Code, and the effect of other acts, except the Penal Code, upon this act, this act is deemed to have been enacted on the first day of January, A. D. 1882. All acts passed after such date, and the Penal Code, are to have the same effect as if passed after this act.”

By the express prescription of the legislature, therefore, the Penal Code, although enacted before the consolidation act, is to have the same effect upon the consolidation act as if it had been passed after that act. This provision, although somewhat anomalous, does not, as we can perceive, transcend the legislative power. It subordinates the consolidation act to the Penal Code wherever the two statutes are in conflict; and, moreover, what is material to notice, the provision affords the plainest implication that, in the sense of the legislature, there were or might be penal provisions in the consolidation act in conflict with the Penal Code. For the purpose of construction, the legislature has declared in what order of time the two statutes shall be deemed to have been enacted, and there being no question of legislative power, it is the plain duty of courts to construe the two statutes in accordance with this direction.

Section 58 of the consolidation act is a re-enactment of section 100 of the charter of 1873, which in turn was a reenactment of section 114 of the charter of 1870. It is sufficiently specific, for our present purpose, to state that

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the section makes it a felony for any person tb give or promise to any member of the common council, or any municipal officer, any money or any valuable thing, with intent to influence his official action, or for any such officer to accept any such gift or • promise, under any agreement or undertaking that his vote, opinion, judgment or action shall be influenced thereby; and subjects the bribe-giver, upon conviction, to imprisonment in the penitentiary for a. term not exceeding two years, or to a fine not exceeding $5,000 or both, in the discretion of the court; and the bribe-taker, on like conviction, to the same punishment, by fine or imprisonment, or both, and in addition, subjects him to a forfeiture of his office, and disqualifies him from holding any office under the city of New York.

Section 72 of the Penal Codeis in the following lahguage:

“Sec. 72. A judicial officer, a person who executes any of the functions of a public office not designated in titles 6 and 7 of this Code, or a person employed by or acting for the state, or for any public, officer in the business of the state, who asks, receives or agrees to receive a bribe, or any money, property, or value of any kind, or any promise or agreement therefor, upon any agreement or understanding that his vote, opinion, judgment, action, decision, or other official proceeding shall be influenced thereby, or that he will do or omit any act or proceeding, or in any way neglect or violate any official 'duty, is punishable by imprisonment for, not more than ten years, or by a fine of not more than five thousand dollars, or both. A conviction also forfeits any office held by the offender, and forever disqualifies him from holding any public office under the state.”

It is material, at the outset, to inquire whether the offense of bribery, committed, by, municipal officers, is, as a general rule, embraced .within and punishable under this section of the Penal Code. If the section does not apply to the bribery of a municipal officer in any case, then, plainly, there is an end of the argument in support of this conviction. If, on the other hand, the section applies, in general, to this class of officers, then it becomes necessary, in order to reverse the conviction, that it should be found that the special case of bribery committed by municipal officers in the city of New York is excepted, or in some way taken out of the operation of this section. The comprehensive character of the provisions of the Penal Code relating to bribery, both in respect to the definition of the offense and the officers by whom it may be committed, is apparent upon the most cursory reading. They form to a great extent the subject of three titles. Title 6 relates to crimes against the executive power of the state, and pre

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scribes the punishment for giving or offering bribes, or for the asking or receiving of bribes by executive and administrative officers. Title 7 relates to crimes against the legislative power of the state, and contains provisions for the punishment of bribery of members of the legislature. Title 8 is entitled, “ Of Crimes Against Public Justice.”' Section 71 prescribes the offense of giving or offering a bribe to a judicial officer, and certain other persons enumerated, connected either with" the administration of justice or who exercise quasi judicial functions. Section 72, which prescribes the offense of receiving bribes, is not thus limited. It specifies judicial officers, but the specification is followed by words of the most comprehensive meaning, intended, apparently, to include in this final provision all public officers within the state, of whatever character or grade, not included within the previous, titles. It, in terms, not only embraces a judicial officer, but also “a person who executes any of the functions of a public office ” not designated in titles 6 and 7. That it was not the intention to confine the section to judicial officers is manifest also from the subsequent designation in the same section of “a person employed by, or acting for, the state, or for any public officer in the business of the state;” and also from section 78, which supplements section 72, and prescribes the offense of giving or offering a bribe to “a person executing the fmictions of a public office,” although the bribery of a judicial officer is specially provided for by section 71.

It is plain that a member of the common council, or other municipal officer, is a person “who executes the functions of a public office,” and we cannot doubt that municipal officers are within the purview of section 72. If this was less plain in the language of the section itself, there are cogent reasons for giving it this construction, in view of the antecedent legislation, and the presumed intention of the legislature. A reference to the successive statutes on the subject of bribery, commencing with the statute (chapter 181, Laws 1806) re-enacted by the Revised Laws of 1813, shows a constant tendency on the part of the legislature to extend the statutes against bribery to persons not embraced in previous laws. The statute of 1806 included only state officers and members of the senate and assembly. The Revised Statutes (2 Rev. St., 760).enlarged the enumeration of state officers in the previous statutes, and for the first time included judicial officers. The amend - ment of 1853 (chapter 539) still further extended the enumeration to “any member of the common council or corporation of any city in the state, or to the mayor, recorder, chamberlain, treasurer, or comptroller of such city,

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or any department of the government thereof.” The act of 1869 (chapter 742) departed from the practice of special enumeration adopted in the previous statutes, and substituted words of general description—“any person holding office under the laws of this state;” and the law of 1869 was in force until the enactment of the Penal Code.

It will be noticed that members of a common council were specially included in the act of 1853, and there can he no reason to suppose that when, in 1869, the legislature substituted a general and comprehensive description in place of a specific enumeration, it intended to exempt municipal officers from the operation of the statute of bribery. It would seem, moreover, that there could be no general policy upon which an omission of municipal affairs from the provisions of the general statute against bribery ■could proceed. The cities of the state embrace a large share of its population and wealth. Municipal governments exercise, by delegation, within a limited sphere, and under certain restrictions, sovereign power. They create debts binding upon the municipality, and wield the power of taxation. The danger to which public rights ana private property are exposed from dishonest municipal administration is certainly as great as from corruption on the bench or in the legislature. It is inconceivable that a bribery statute of general application should he enacted which did not embrace bribery of municipal officers. We find no difficulty in .reaching the conclusion that section '72 ol the Penal Code applies, in general, to the offense of bribery committed by municipal officers.

We are, therefore, brought directly to the main question, whether section 58 of the consolidation act is in force, and takes the case of bribery, when committed by a member of the common council of the city of New York, out of the operation of section 72 of the Penal Code; thereby requiring a different procedure and a different punishment in the special case from that prescribed by the general law governing the same offense, when committed by a member of a common council in other cities of the .state.

The Penal Code, as its title implies, is an institute of criminal justice of general application, and was enacted, in harmony with the tendency of recent legislation, for the purpose of embodying in a single statute the system of criminal law applicable to the state, and substituting the 'statute so enacted in place of the great number of statutes and amendments of statutes which together, before the enactment of the code, constituted the body of the criminal law. In the seventh section it is declared that “this code specifies the classes of persons who are deemed capable of crimes, and liable to punishment; the nature of

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the various crimes; and prescribes the kind and measure of punishment to be inflicted for each; ” and it declared in the second section that “no act or omission, begun after the beginning of the day on which the Code takes effect as a law; shall be deemed criminal and punishable, except as prescribed or authorized by the Code, or by some statute of this state not repealed by it.” It is a plain inference from these provisions that the Penal Code was intended as a revision of the prior laws in respect to crimes and their punishment, and as a substitute for the scattered and fragmentary legislation which preceded it. The Penal Code contains no general clause repealing prior statutes covering the subjects embraced in its provisions. It, however, ■defines and prescribes the punishment for murder, larceny, burglary, and all the generally recognized offenses, and it cannot be doubted that its provisions on these subjects were intended as a substitute for similar provisions in the prior laws. On comparing the offense of bribery, as defined by the consolidation act and by section 12 of the Penal Code, it will be found that all the elements of the crime, as defined in the consolidation act, are included in the definition of _ the same crime in the Penal Code, although the definitions in the two statutes are not identical in language. By the consolidation act every officer enumerated therein, “who shall accept a gift or promise,” etc., with the agreement or understanding that his vote or action shall be influenced thereby, is declared guilty of a felony. By section 12 of the Penal Code the words, “receives or agrees to receive a bribe,” etc., are used in place of those in the consolidation act. But the words in both statutes are of equivalent meaning.

It was assumed on the trial that the indictment was found under the provisions of the Penal Code. In point of form, we think the indictment was good under either statute. It is not necessary that an indictment should follow the precise language of a statute, but words of equivalent import are sufficient, and this rule of the common law is now declared by statute. Code Grim. Pro., § 283. We have then, first, a special provision in the charter of the city of New York making bribery committed by a city officer a crime, and declaring its punishment; and, next, a general law, later in date (for so it must be deemed), containing provisions defining with great minuteness the crime of bribery by executive, legislative and judicial officers, and in the final section including every “person executing the functions of public office.”

The learned counsel for the defendant insists that the two acts are not necessarily repugnant, and they invoke the

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application to this case of the general rule in respect to the repeal of statutes by implication, that a posterior general act does not repeal the prior local act, unless the legislative intent to repeal be unequivocally apparent. Whether a subsequent statute repeals a prior one, in the absence of express words, depends upon the intention of the legislature; and one of the tests frequently resorted to to ascertain whether there is a repeal by implication is to inquire, whether the special and general acts may both be executed without involving repugnancy of rights or remedies. In some cases the question has been solved by holding that, the general act was intended to declare a general rule governing cases not already provided for, and that a prior special statute on the same subject, operating upon a single person or class of persons, or within a limited territory, should be treated as if specially excepted from the operation of the general law.

It will be found, I think, on examining the cases in which the courts have held that a special law was not repealed by a subsequent general law on the same subject, that they are, as a general rule, cases where the legislature was not dealing directly with the subject of the prior law, and it was not in the mind of the legislature when the general, law was enacted, or where the. special law was part of a system of local administration, or where it was possible to assign a reasonable motive for retaining the special and peculiar provisions of the special act, notwithstanding the enactment of a subsequent general rule covering the same subject. The general bribery act not only covers the whole subject, but was, we think, plainly intended to furnish the only rule governing the crime and punishment of bribery. It includes, by enumeration and description, all officials of every grade,—town, city, county, and state officers; provides a uniform punishment, but gives to the court a discretion in applying it, within the limit prescribed, to meet the circumstances of the particular case.

The crime of bribery is not local, affecting only a particular locality. No matter in what place the crime is committed, or whether by a town, city, county or state officer, it is an offense in the punishment of which the whole public are interested. It is peculiarly a crime against society at large. It impairs public confidence in the integrity of official administration—a confidence most necessary to be maintained. It is impossible to suppose that the legislature, when it enacted the Penal Code, intended to exempt officials in the city of New York from the operation of the bribery sections. No public policy can be assigned for such a discrimination, and we think the case is within the rule

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that “a later statute, covering the same subject matter, and embracing new provisions, operates to repeal the prior act, although the two acts are not, in express terms, repugnant.” See Norris v. Crocker, 13 How., 429 ; Bartlet v. King, 12 Mass., 545 ; U. S. v. Tynan, 11 Wall., 88 ; Heckman v. Pinkney, 81 N. Y., 215 ; People v. Gold & Stock Tel. Co., 98 id., 78.

The construcution we have given to the Penal Code, in connection with the consolidation act, is greatly strengthened in view of the inconsistencies which would result from holding that section 58 of the consolidation act is still in force. At the time of the enactment of the Penal Code the charters of the cities of New York, Brooklyn and Long Island City contained provisions for punishing bribery committed by municipal officers in those cities. (Laws 1873, chap. 335, § 100; Id. chap. 863, tit. 19, § 22; Laws 1871, chap. 460.) But no such provisions were contained in the charters of Albany, Poughkeepsie, Troy, Syracuse, Rochester, Buffalo or Elmira. The general bribery act of 1869, which was in force until the enactment of the Penal Code, made bribery a crime when committed by “any person holding office under the laws of this state.” The statute of 1869 was unquestionably superseded by the provisions of the Penal Code. Unless, therefore, municipal officers are punishable for bribery under section 72, it follows that bribery committed by municipal officers in New York, Brooklyn, and Long Island City is punishable under the special provisions of the charters of those cities, but is not an offense, and is not punishable, when committed by officers of the same class in the other cities of the state.

If, on the other hand, section 72, as we have endeavored to show, includes municipal officers, the contention that, nevertheless, the crime and punishment of bribery by municipal officers in the city of New York is still governed by section 58 of the consolidation act leads to an equally absurd result. It involves the necessity of ascribing to the legislature an intention to discriminate in the punishment of bribery when committed by a municipal officer in the city of New York, and when committed by municipal officers in other cities; and also the further intention to punish the crime when committed in the smaller municipalities with far greater severity than when committed by municipal officers of the most populous and important city in the Union. Such legislation is absurd in theory, and leads to injustice. It regulates punishment according to the locality of the crime instead of by the nature of the offense. It is repugnant to the principle that laws should be equal and impartial, and ignores a natural sentiment which requires even handed justice, even in the punishment of crimes. A law

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punishing homicide in the city of New York by imprisonment in the state prison, and in Brooklyn by hanging, would shock the general sense, but would not be different in principle from- a law punishing bribery in one city by imprisonment in the penitentiary for two years and in the other by imprisonment in the state prison for ten years.

It is the duty of courts, in construing statutes, to avoid if possible, a construction which leads to absurdity or manifest injustice, and the case before us calls for the application of this principle. The fact that prior to the Penal Code the same inconsistency existed between the punishment for bribery under the charter provisions, and the general bribery statute does not, we think, make it less the duty of the court to seek to place such a construction upon the Penal Code as will remedy such an anomalous and unsatisfactory condition of the law.

The argument so far has proceeded upon the assumption that the Penal Code contains no express provision saving the bribery provision in the consolidation act from its operation. But it is claimed by the counsel for the defendant that section 58 of the consolidation act is continued in force by section 725 of the Penal Code. That section is as follows:

Sec. 725. Nothing in this Code affects any of the provisions of the following statutes; but such statutes are recognized as continuing in force, notwithstanding the provisions of this Code, except so far as they have been repealed or affected by subsequent laws: (1) AH acts incorporating municipal corporations, and acts amending acts of incorporation, or charters of such corporation, or providing for the election or appointment of officers therein, or defining the powers and duties of such officers; (2) all acts relating to emigrants or other passengers in vessels coming from foreign countries, except as provided in section 626 of this Code; (3) all acts for the punishment of intoxication, or .the suppression of intemperance, or regulating the sale or . disposition of intoxicating or spirituous liquors; (4) all acts defining and providing for the punishment of offenses not defined and made punishable by this Code.”

The claim is that this section excepts from the operation of the Penal Code all penal provisions in charter acts, and that as section 58 of the consolidation act is a penal provision of that'7 character, it is excepted from the operation of the Penal Code. Notwithstanding the generality of the language of section 725, it .is apparent from other provisions, both of the consolidation act and of the Penal Code, that it was not intended that all penal provisions in charter acts should remain in force unaffected by the Penal Code. The provision in section 2143 of the consolidation-act, that

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the Penal Code should have the same effect upon the, consolidation act as if it was passed after that act, has no signification except upon the assumption that, in the sense of the legislature, the Penal Code contained provisions which, if deemed to have been enacted after the consolidation act, would or might modify the penal clauses in that act. Moreover, it was the evident intention of the legislature to establish by the Penal Code a uniform rule of punishment for crimes of the same grade throughout the state. It is enacted in section 719 that an offense specified in the Code, committed after it has taken effect, 1 ‘ must be punished according to the provisions of this Code, and not otherwise.”

The claim that section 925 was intended to apply to and preserve unimpaired all penal provisions in charter acts is clearly disproved by section 726. That section, which contains the only express repealing provision in the Code, is as follows:

“Sec. 726. All acts and parts of acts which are inconsistent with the provisions of this act are repealed, so far as they impose any punishment for crime, except as herein provided.”

The true meaning of the phrase “ except as herein provided,” would, I apprehend, have been more clearly expressed by the words “other than as herein provided.” The consolidation act does not impose a punishment for bribery inconsistent with that prescribed by the Penal Code, and section 726, if it goes no further, clearly conforms the punishment for bribery under the consolidation act to that prescribed under the Penal Code, and so, to that extent, affects the charter provision. In this view it is not very material whether section 58 is regarded as wholly repealed, or only as modified in respect to the punishment. If modified only, the result would be that there are two statutes identical in substance, both as respects the definition of the crime and its punishment, under either of which an indictment would he, a judgment under one barring proceedings under the other. But we are of opinion that section 725 is to be construed as saving only those penal provisions of charter acts which are not covered by the provisions of the Penal Code, and this limitation of the generality of the language of that section is required upon construing it in connection with other provisions, and in view of the general purpose of the legislature, in enacting the Penal Code, to consolidate into one act the various statutes relating to crimes, and to prescribe a uniform rule of punishment.

The main evidence produced on the trial to sustain the charge of bribery was that of a police inspector, and other police officers, who testified to confessions of the defendant.

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It did not appear that they were made under the influence of fear produced by threats, or upon any stipulation for immunity from prosecution, so as to make them inadmissible under section 395 of the Code of Criminal Procedure. But it is claimed that there was no proof in addition to the confessions, as required by statute, to warrant a conviction. By section 395 of the Code of Criminal Procedure, it is declared that the confession of a defendant “ is not sufficient to warrant a conviction without additional proof that the crime charged has been committed.” There was evidence given on the trial showing that the Broadway Railway grant was passed under circumstances which, while they may possibly have been consistent with an innocent intention on the part of the defendant and others, nevertheless indicated the operation of unusual motives and influences, and, when interpreted in the light of the confession, are strongly corroborative of its truth.

It is insisted that under the statute the corpus delicti must be proved, or evidence given tending to prove it, wholly independent of the confession, and that no evidence was given which, disconnected with the confessions, had a legal tendency to prove the body of the crime. It would be a sufficient answer to this point that it is not raised by any exception on the trial, and it clearly was not raised by the exception to the denial of a motion for a new trial, made after verdict. But we are of opinion that when, in addition to the confession, there is proof of circumstances which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury for a non-compliance with the requirements of the statute. The words of the statute, “additional proof that the crime charged has been committed,” seem to imply that the confession is to be treated as evidence of the corpus delicti—that is, not only of the subjective criminal act, but also the criminal agency of the defendant; in other words, as competent proof of the body of the crime, though insufficient, without corroboration, to warrant a conviction. “Full proof,” said Nelson, C. J., in People v. Badgley ( 16 Wend., 59 ), “ of the body of crime—the corpus delicti—independently of the confession, is not required by any of the cases, and in many of them slight corroborating facts were held sufficient.” We are of opinion that there was evidence in addition to the confession which constituted “additional proof” within the statute.

We have examined the other questions raised, but have reached the conclusion that no error is disclosed in the record, and that the judgment should be affirmed. The

Dissent

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case was carefully tried. No- evidence in favor of the defendant was excluded, and none admitted against him of doubtful competency. The charge was full and explicit upon all the points to which the attention of the court was directed. We have been greatly aided in our examination of the case by the arguments of the respective counsel, from which nothing on either side was omitted legitimately bearing upon the questions presented.

The judgment should be affirmed. All concur except Rapallo, J., who reads a dissenting opinion, and Earl, J., who concurs therein.

(dissenting.) The important question in this case is whether the offense of which the prisoner was convicted was punishable under section 72 of the Penal or under section 58 of the consolidation act of 1882.

Section 72 of the Penal Code provides as follows: “A judicial officer, a person who executes any of the functions of a public office not designated in titles 6 and 7 of the Code, or a person employed by or acting for the state, or for any public officer in the business of the state, who asks, receives, or agrees to receive, a bribe, or any money, property, or value of any kind, or any promise or agreement therefor, upon any agreement or understanding that his vote, opinion, judgment, action, decision, or other official proceeding shall be influenced thereby, or that he will do or omit any act or proceeding, or in any way neglect or violate any official duty, is punishable by imprisonment for not more than ten years, or a fine of not more than five thousand dollars, or both. A conviction also forfeits any office held by the offender, and forever disqualifies him from holding any office under the state.”

This Code was passed July 26, 1881, and section 727 declares: “This act shall take effect on the first day of May, 1882. When construed in connection with other statutes, it must be deemed to have been enacted on the fourth day of January, 1881, so that any statute enacted after that day is to have the same effect as if it had been enacted after this Code.”

The consolidation act was passed July 1, 1882, and is entitled “An act to consolidate in one act, and to declare, the special and local laws affecting public interests in the city of New York.” It contains the charter of the corporation, and provides for the local government of the city. It continues the board of aldermen, and the various departments of the city government.

Section 58, so far as relates to the question now at issue; is in the following words: “Sec. 58. Every person who ■shall promise, offer, or give, or cause, or aid or abet in

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causing, to be promised, offered, or given, or furnish, or agree to furnish, in whole or in part, to any other person, to be promised, offered, or given to any member of the common council, or any officer of the corporation, or clerk, after his election or appointment as such officer, member,. - or clerk, or before or after he shall have qualified and taken his seat, or entered upon his duty, any moneys, goods, right in action, or other property, or anything of value, or any pecuniary advantage, present or prospective, with intent to influence his vote, opinion, judgment or action, on any question, matter, cause, or proceedings which may be-then pending or may by law be at any time brought before him in his official or clerical capacity, shall be deemed guilty of a felony, and shall, upon conviction, be imprisoned in a penitentiary for a term of not exceeding two- years, or-shall be fined not exceeding five thousand dollars, or both, in the discretion of the court. ”

Every officer in this section enumerated, who shall accept, any such gift, or promise, or undertaking, or make the same "under any agreement or understanding that his. vote, opinion, judgment, or action shall be influenced thereby, or shall be given in any question, matter, cause or proceeding then or at any time pending, or which may by law be brought before him in his official capacity, shall be-deemed guilty of a felony, and shall, upon conviction, be dis-r qualified from holding any public office, trust, or appointment under the city of Yew York, and shall forfeit his. office, and shall be punished by imprisonment in the penitentiary not exceeding two years, or by a fine not exceeding; $5,000, or both, in the discretion of the court.

The prisoner was indicted for the crime of bribery committed by him in August, 1884, as a member of the common council of the city of Yew York. It was pssumed upon the trial that one count of the indictment was framed under section'72 of the Penal Oode,. and the other under-section 58 of the consolidation act. On the trial, the court, on motion of the counsel for the prisoner, required the district-attorney to elect upon which count of the indictment, he would proceed, and thereupon the district-attorney stated that he elected to go to trial on the first count, under section 72 of the Penal Oode. The counsel for the prisoner thereupon moved to dismiss the indictment, or direct an acquittal, on the ground that no conviction could be had •under that count. The motion was denied, and- an exception taken, and the trial proceeded. The jury rendered a. verdict of guilty. A motion in arrest of judgment was made and denied, and the prisoner was then sentenced to be imprisoned in the state prison at hard labor for the term of nine years and ten months.

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It wiE be observed that the Penal Code is a general statute, operative throughout the state, and that section 72 provides for the punishment of the crime of bribery committed by any person who executes any of the functions of a public office not designated in titles 6 and 7 of the Code (which relate to state officers), and fixes the maximum punishment at imprisonment in the state prison for ten years, or $5,000 fine, or both; while section 58 of the consolidation act is a local act, applying only to the city of New York, and relates only to a special class of officers— viz., members of the common councE of said city, officers of the corporation, and clerks—and fixes the maximum punishment for crime committed by such officers at imprisonment in the penitentiary for two years, or $5,000 fine, or both.

The Penal Code, as has been stated, was passed in July, 1881, and the consolidation act in July, 1882. The consohdation act provides for the punishment of the same crime for which the prisoner was indicted. He was one of the-officers speciaEy referred to in that act, and, it being the later statute in point of time, would unquestionably control where it differed from the Penal Code, and the present controversy would never have arisen but for a peculiar provision of the consohdation act, contained in section 2143 of that act, in the following language : “For the purpose of determining the effect of this act upon other acts, except-the Penal Code, and the effect of other acts except the Penal Code upon this act, this act is deemed to have been enacted on the first day of January 1882. AE acts passed after such date, and the Penal Code, are to have the same effect as if they -were passed after this act. This act shaE take effect on the first day of March, 1883.”

The effect of this section is the question now before us. It is claimed, on the part of the prosecution, that the provisions of section 58 of the consohdation act are inconsistent-with those of section 72 of the Penal Code, and that section 2143 by declaring that the Penal Code, although in fact; passed first, is to have the same effect as if passed last, operates to repeal section 58 of the consohdation act, and to put in its place section 72 of the Penal Code. This argument puts the legislature in the remarkable position of carefully framing and enacting the provisions of section 58, and, in the same breath, and by the same act, declaring that they shall have no effect whatever, but shaE be deemed repealed and superseded by an act passed the previous year. Such a self-stultification cannot be attributed to the legislature if there is any rational theory upon which its enactment can be reconciled.

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In the first place, it should be assumed that, in giving to the Penal Code the position of the later statute, the legislature had in mind the familiar and firmly-established rule for the construction of statutes; that general legislation on .a particular subject must give way to special legislation on the same subject, and that laws, special and local in their application, are not deemed repealed or modified by general legislation on the same subject, although the terms of the .general act are broad enough to include the cases embraced in the special law, unless the intent to change the local law is clearly manifested. In re Commissioners of Central Park, 50 N. Y., 493 ; McKenna v. Edmundstone, 91 id., 231; People v. Quigg, 59 id., 88.

Whatever purpose the legislature may have had in view, therefore, in the enactment of section 2143, it is clear that it could not have intended to operate as a repeal of section 58, for they well know that, even if the Penal Code had in fact been passed after the consolidation act, it would not have affected the provisions of section 58, which are special and local in their application, being applicable only to members of the common council and other municipal officers of the city of New York; and that to repeal these provisions, special reference to them, or some other manifestation of the intent to repeal them than merely giving to the Penal Code the position of a later statute, was necessary. They were not, therefore, guilty of the absurdity of enacting •section 58, and inserting in the same act a provision which would prevent its operation.

But, looking a little further into the subject, we find that at the time of the passage of the Penal Code there was, and for many years had been in force, a special local statute •for the punishment of bribery of members of the common ■council and other municipal officers of the city of New York, which differed materially from the general law on the subject of bribery, and that this special local statute was not only unaffected by the Code, but was retained in force by an express provision of the Code itself. Prior to the adoption of the Penal Code tire general provisions of law on the subject of bribery were contained in the act of 1853, chapter 539, entitled “An act to amend the existing laws relative to bribery,” and chapter 742 of the Laws of 1869, entitled “An act*for the more effectual suppression .and punishment of bribery.” The act of 1853 amended the Revised Statutes, and enumerated the various officers who might commit the crime, including the governor, state officers, members of the legislature, judiciary, and also members of the common council or corporation of any city in ■this state, and imposed a maximum punishment on the offending officer of ten years’imprisonment, or $5,000 fine, be

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sides forfeiture or office and disqualification. The act of 1869 was more general in its terms. It did not enumerate the officers, but applied to “ any person holding office under the laws of this state ” who should receive, or consent to receive, a bribe. It imposed upon the party convicted a maximum punishment of five years’ imprisonment in the state prison, and $5,000 fine. It omitted the punishment of forfeiture of office, and disqualification from holding office, which was contained in the Revised Statutes and in the act of 1853, and it contained this remarkable provision: “Sec. 2. No person who has heretofore paid or offered, or shall hereafter pay or offer, a bribe to any person holding office under the laws of this state, which has been or shall be accepted in whole or in part, shall be liable to criminal prosecution therefor.”

This was the general law of the state on the subject of bribery when the Penal Code was adopted, but at the same time there were in force special and local statutes on that subject applicable to members of the common council and other municipal officers of the city of New York, and some of the other cities of the state, which differed from the general law. The act to amend the charter of the city of New York (Laws of 1853, c. 217, § 14), contained a provis.ion substantially in the same form as section 58 of the consolidation act, making the acceptance of a bribe, or of a promise of a bribe, by any member of the common council ■or officer of the corporation, a felony punishable by forfeiture of office, and disqualification from holding office under the city, and by iinprisonment in the state prison for ten years, or a fine of $5,000, or both; thus conforming to the general law of 1853 on the subject of bribery.

The charter of 1857 (Laws of 1857, chap. 446), entitled “An act to amend the charter of the city of New York,” (section 52), re-enacted the foregoing provision of the charter of 1853, but reduced the maximum punishment to two years’ imprisonment in the penitentiary and $5,000 fine, besides being disqualified from holding any office under the city of New York. This was the first enactment which imposed a punishment for bribery on a member of the common council of the city of New York different from that established by the general law. This provision was re-enacted in the charter of 1870 (Laws 1870, chap. 137, § 114), and was again re-enacted in the charter of 1873 (Laws 1873, chap. 335, § 100) in the same language, and was in force at the time of the passage of the Penal Code.

Thus it will be seen that for nearly twenty-five years before the passage of the Penal Code it had been the law, under the charters of the city of New York, that the

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maximum punishment which could be inflicted upon a member of the common council of that city for accepting a bribe was two years’ imprisonment in the penitentiary or $5,000 fine, and a disqualification from holding any office or public trust under the city. The. general provision in the Penal Code for the punishment of bribery did not, under the general rule for the construction of statutes before adverted to, operate to repeal or alter this local provision contained in the charter, even if the Penal Code be treated as the last enactment. It would be assumed, in conformity with that rule, that the general law was not intended to affect the local law, unless the intention that it. should affect it plainly appeared. But, so far from there being any appearance of such intention, the precise contrary is made manifest by section 725 of the. Penal Code, which provides: “Sec. 725. Nothing in this Code affects any of the provisions of the following statutes, but such statutes are recognized as continuing in force notwithstanding the provisions of this Code, except so far as they have, been repealed or affected by subsequent laws.” Then follows an enumeration of the laws not affected by the Code, which enumeration includes “all acts incorporating municipal corporations, and acts amending acts of incorporation, or charters of such corporations.”

In view of this plain provision of the Code, the legislature may well have adopted section 2143 of the consolidation act without deeming that by so doing they impaired any provision of the charter of the city of New York which was embraced in the consolidation act. The Penal Code was before the legislature when the consolidation act was passed; the Penal Code having been passed at the previous session. The difference between the punishment prescribed for bribery in that Code and in section 100 of the charter of 1873, and section 58 of the consolidation act, was plainly apparent, but at the same time it was provided that nothing in the Code should affect any of the provisions of any charter or act amending the charter of a municipal corporation. It was obvious, in view of the saving clause, that, had the Code been in fact passed after the consolidation act, it could have had no effect upon the provisions of section 58.

It is argued that it cannot be supposed that the legislature intended to provide for the punishment of the crime of bribery in one class of officers by one measure of punishment, and that for precisely the same offense they should prescribe a different punishment for a different class of officers. It is indeed difficult to assign a reason for making the distinction, and especially for making the punishment for bribery comparatively so light in respect to

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members of the common, council of the city of New York when the magnitude of the interests controlled by that body is considered. But, nevertheless, the distinction has been made, and has existed ever since 1857 in the city of New York, and also in several other cities of the state. By the charter of Long Island. City (Laws of 1871, chap. 461, tit. 2, § 1) any city officer found guilty of bribery or corruption ’ is punishable by imprisonment in the state prison for a term not less than three, nor more than ten years, or a fine of $5,000, or both. In this case it will be observed the provision is more severe than that of the general law, for it prescribes a minimum “punishment of three years’ imprisonment. By the act amending the charter of the city of Brooklyn (Laws 1873, chap. 863, tit. 19, § 22) any member or officer of the common council, or i any city officer receiving a bribe, is declared guilty of a felony, and punishable by imprisonment in the state prison, for a term not less than three nor more than five years.

These provisions clearly were left in force by the Penal Code; and, after the passage of that Code, in the charter of the city of Albany, adopted in 1883 (Laws 1883, chap. 298, tit. 18, § 6), a provision was inserted that any member or the common council, or other officer of the city who should accept a bribe, or a promise of a bribe, should be disqualified from holding office under the city of Albany, and be punished by imprisonment in the penitentary not exceeding two years, or by a fine not exceeding $5,000, or both, which provision is almost identical with section 58 of the consolidation act. There is no ground upon which it can be pretended that the provisions of that act are effected by the Penal Code which took effect December 1, 1882. The contention, therefore, that it was the policy of the legislature to provide a uniform punishment through the state for the crime of bribery, is not sustained by reference to its acts. It rather seems to have been the practice to pass local laws, operative in the several municipalities, providing for the punishment of the municipal officers when guilty of bribery.

Several ingenious arguments have been presented by the counsel for the people for the purpose of avoiding the plain language of these statutes. It is urged that subdivision 1 of section 725 of the Penal Code, which declares that nothing in that Code affects any of the provisions of any act incorporating a municipal corporation, or amending the charter of such corporation, is qualified by subdivision 4 of section 725, which enumerates among the statutes not affected by the Code: “ (4) All acts defining and providing for the punishment of offenses not defined and made punishable by this Code.” We fail to perceive how this pro

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vision affects subdivision 1. It is an additional exception, and covers all enactments, though not contained in any municipal charter, which provide for the punishment of particular offenses not provided for in the Code.

The usual general repealing clause in section 126, of all acts and parts of acts inconsistent with the provisions of the Code, is also referred to. But that clause in a general law is not sufficient to repeal a special local law not referred to in terms, and which is capable of co-existing with the general law. Whipple v. Christian, 80 N. Y., 523 , 526; In re The Evergreens, 41 id., 216, and other cases; In re Com’rs Central Park, 50 id., 493. A provision affecting only a certain locality, or a specified class of persons, is not necessarily inconsistent with a general law, but is an exception to it. The discussion of that question is, however, unnecessary, when we find that the general law expressly ratifies and recognizes the exception.

The entire repealing section 126 reads as follows: “Sec. 126. All acts and parts of acts which are inconsistent with the provisions of this act are repealed, so far as they impose any punishment for crime, except as herein provided.” The words “so far as they impose any punishment for crime ” are commented upon in support of the position that so much of the consolidation act as prescribes the punishment for bribery was intended to be embraced in the repeal. It is difficult to see how this could be when it is remembered that the consolidation act had not then .been passed. But to meet that point it is sought to apply the language to the charter of 1813. This is equally impossible when we recall the provision of section 125, that nothing in the Code affects “any provision” of any charter act of a municipal corporation; and the concluding sentence of section 126 settles the question by declaring that inconsistent acts imposing punishment for crime are repealed, “except as herein provided;” thus recognizing that some acts are inconsistent with the Code imposing punishment for crime are excepted from the repeal, and are retained in force. The charter acts referred to come within the category.

The further ground is taken that section 100 of the charter of 1813, and section 58 of the consolidation act, stand. upou the footing of a mere municipal ordinance created by the legislature, and make that a crime against the corporation which in some of its features is also a crime against the state, and that consequently the general law against bribery is in full force notwithstanding the special law relating to the city of Yew York. . This argument it is difficult to understand. If, under authority conferred by the legislature, an ordinance had been passed by the corporation for the

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punishment of an offense, there would be force in the suggestion that, if the same offense were punishable under the general laws of the state, they could be enforced, and would not be superseded by the corporation ordinance. But the provision in question was not a corporation ordinance. It was a law of the state, enacted by the same authority as the Penal Code, and, although affecting only particular local officers, had all the force, with respect to crimes com.mitted by them, of a law of the state.

Our conclusion is that the judgment of the supreme court, and of the court of oyer and terminer, must be reversed, and a new trial ordered.

Earl, J., concurs.

Statutes and regulations cited

Public Officers Law p. 15