People v. McDonald — 8 N.Y. St. Rep. 494

Majority

p. 494

The People of the State of New York, Resp’t, v. Patrick McDonald, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 24, 1887.)

Headnote

1. Game Laws—Pbosecütions fob violation of—Laws 1879, chap. 584, § 19, as amended by Laws 1886, chap. 124—Laws 1883, chap. 317, §§ 1 and 4—Laws 1879, chap. 534, § 33.

It is provided by Laws 1879, chap. 534, 119, as amended by Laws 1886, chap. 124, that no person shall have in his possession, after the same has been caught, any speckled trout, save from May first to September first in each year, except in certain counties. Any person violating this provision is liable to a penalty for every such trout so had in his possession. Laws 1883, chap. 317, § 1 authorize the appointment of game protectors, whose

p. 495

duty it is, among other things, to bring, or cause to be brought, actions in the name of the people to recover these penalties. It is further provided that such actions may be brought in the name of the people in like cases in the same courts, and under the same circumstances as they might then or thereafter be brought by any individual under or by virtue of any then existing or thereafter enacted statutes for the protection of deer, game, or fish. The district attorney of any county is by that act required, upon the request of any one of such protectors, to commence and prosecute to termination in the name of the people, actions and proceedings against any person reported to him by such protector to have violated any such statute or laws for the recovery of the penalty for the violation thereof. Section 33 of Laws 1879, chap. 534, provides that all penalties imposed by that act may be recovered, with costs of suit, by any person in his own name before any justice of the peace in the county where the offense was committed, or in an adjoining county, when the amount does not exceed the jurisdiction of such just.ce. And such penalties may bo recovered in like manner in any court of record in this state. Held, citing Laws 1883, chap. 317, § 4, that for the preservation of game the state is divided into protection districts, and the district attorney of any county may become a prosecuting attorney at the request of the game protector for the district. Landon, J.

2. Same—Powees oe distbiot attoeney.

He'd, That it was competent for the legislature to impose this duty upon existing county officers. Landon and Mayham, JJ.

3. Same—Extent oe powees.

The question as to whether any district attorney could begin such an action in any county other than his own, or for penalties incurred outside of his own or an adjoining county, was expressly omitted from decision by Landon, J. Mayham J., Held, that the authority of the district attorney extended to adjoining counties, and withheld his decision as to the broader extent of his powers. Leabned, P. J., Held, that the powers of the district attorney as a prosecuting officer extended no further than to counties adjoining his own.

Appeal from an order of the special term denying a motion to dismiss the complaint. '

The action was brought to recover certain penalties under the game laws. The defendant is charged with having had on the 20th of April, 1886, in his possession in Saratoga county, certain speckled trout, after they had been caught, contrary to section 19 of chapter 534 of the Laws of 1879, as amended by section 1 of chanter 124 of the Laws of 1886.

The action was commenced by the district attorney of the county of Fulton, which county adjoins Saratoga county, and the place of trial was laid in Fulton county. The action was commenced upon the request of the game protector of the eighth game district.

The motion to dismiss was made upon the ground that the district attorney of Fulton county was not authorized to bring the action for a penalty incurred in Saratoga county.

Charles C. Lester, for app’lt; C. M. Parke, for resp’t.

Section 19 of chapter 534 of the Laws of 1879, as amended by chapter 124, Laws of 1886, provides,

p. 496

that no person shall have in possession after the saíne has been caught, any speckled trout, save from May 1 to September 1, in each year, except in certain counties, among which Saratoga and Fulton are not included.

Any person violating this provision is hable to a penalty ■of twenty-five dollars, for every such trout so had in his ,possession.

Chapter 317 of, the Laws of 1883, section one, authorizes the appointment of game protectors whose duty it is, among other thing, to bring or cause to be brought, actions fin the name of the people to recover these penalties.' It further provides: “ Such actions may be brought in the mame of the people in like cases, in the same courts, and under the same circumstances, as they might now, or may hereafter be_ brought by any individual, under or by virtue nf any existing or hereafter enacted statutes for the protection of deer, game and fish, or any of them. * * * The district attorney, of any county of this state, shall upon the request of any one of such protectors, commence and ■prosecute to termination in the name of the people, actions and proceedings against any person reported to him by such protector, to have violated any such statute or laws, for the recovery of the penalty for the violation thereof.”

Section 33 of chapter 534, Laws of 1879, provides, that, “ all penalties imposed by this act may be recovered with costs-of suit by any person in his own name, * * * before any justice of the peace in the county where the offense was committed, or in an adjoining county, when the amount does not exceed the jurisdiction of such justice. * * * And such penalties may be recovered in like manner in any court of record in the state.”

It thus appears that the penalty may be recovered in an :action brought in the name of the people by an} district attorney, upon the request of the game protector, in the county where the offense was committed, or in an adjoining county, either before a justice of the peace, when the ■amount does not exceed his jurisdiction, or in any court of ’record. See Leonard v. Ehrich, 40 Hun, 460 .

The argument of the learned counsel for the appellant is .to the effect that the district attorney is by statute the ¡prosecuting officer for offenses committed and penalties incurred within his own county. However true that may be .as a general rule, it will be seen (Chap. 317, § 4, Laws 1883), that for the preservation of game, the state is to be divided into protection districts, and the district attorney of any county may become a prosecuting attorney at the request of the for the district,

i It was competent for the legislature to impose this duty ■.upon existing county officers.

Concurrence

p. 497

Whether any district attorney could begin such an action in any county except his own, or for penalties incurred, other than in his own or an adjoining county, we are not now called upon to decide.

Order affirmed, with ten dollars costs and printing disbursements.

concurs, and adds:

By section 33 of chapter 534, Laws of 1879, actions for penalties under that act may be prosecuted before a justice of the peace of the county where the offense was committed or in an adjoining county, when the amount does not exceed the jurisdiction of a justice, and when it exceeds in amount the jurisdiction of a justice * * * such penalties may be recovered, in like manner, in any court of record of this state * * * and it shall be the duty of any district attorney in this state, and he is hereby required, to prosecute or commence actions in the name of the people for the recovery of the penalties allowed hereby.

This language it seems to me is too broad to be restricted to prosecutions by district attorneys in their own counties; but extends their authority to prosecute to adjoining counties; whether beyond that, is not necessary to inquire in this case.

(dissenting) The question here arises on the -construction of chapter 317, Laws of 1883, which, in the respect in question, is like chapter 591, Laws of 1880. Section 1 says: ‘‘The district attorney of any county of this state shall, upon the request of any one of such protectors, commence and prosecute to termination, in the name of the people, actions and proceedings against any persons reported,” etc. “All money necessary for witnesses fees shall be advanced by, and all moneys except costs recovered * • * shall be paid to the treasurer of the county in which the action * * shall have been commenced.”

The question is whether this means that the district attorney of every county in the state may commence an action for violations occurring in every other county, in which he is requested by a game protector to bring such an' action. Or does it mean that every district attorney must, on request, bring such an action for violations occurring in his own county.

The plaintiff insists on the former; the defehdant on the latter. Either is possible, and we must judge which is intended, from other things than the mere words in this-statute.

Dissent

p. 498

There is no doubt that the district attorney is a county officer; that he is to reside in his county. That his salary is paid by the county; that he is to attend the courts of his-county, and specially that he is to prosecute for penalties incurred in his county. 1 R. S., m. p. 383, § 91. When his salary is fixed, he is to pay to the county treasurer of his county all moneys received for judgments, fees and costs. Laws 1852, chap. 304, § 6. See also Code Civil Procedure, § 1968.

It is plain that the general scope of the duties of district-attorneys is confined to their counties, and the moneys collected by them go to the county treasurer of their respective counties.

Now if we take this general system and apply it to the construction of this statute, we shall find everything harmonious. It will be the duty of each district attorney, on the request of a game protector, to prosecute and recover penalties for violations of the game laws which have occurred within his county. If chapter 317, Laws of 1883, give him the right to bring an action in the name of the people for these penalties in an adjoining county to that in which the violation occurred, then he may prosecute within his own, or an adjoining county. (I do not understand that this was necessarily decided in Leonard v. Ehrich, 40 Hun, 460 .) But he can go no further.

The special authority (if it be given) to prosecute in an adjoining county to that where the offense is committed does not make him the prosecuting officer for offenses committed in all parts of the state.

If the plaintiff’s construction is right, then the district attorney of (say) Fulton county may commence suits in the name of the people in the city of New York, to collect penalties for violations of the game laws committed in that city. And, on his mere requisition, the county treasurer of that county (the chamberlain) must advance all money necessary for witnesses fees and disbursements.

Now, I cannot think that a construction is correct, which permits the prosecuting officer of one county thus to take on himself the enforcement of the law for offenses committed in another county, and to call on the treasurer of such other county for all the money he may deem necessary for witnesses fees and disbursements.

Suppose the language of the statute had been “district attorneys shall, upon the request,” etc., it would have been understood that the duty of each was limited to offenses-within his own county. I think the words used have the same meaning. If the meaning was intended which the plaintiff takes, then the language would have been more explicit, and it would have said that any district attorney

p. 499

might prosecute for violations committed in his own or in any other county of the state. A provision so contrary to the general scope of our legal system would have been unmistakably expressed.

I think, therefore, that the order should be reversed and motion granted. Com. Excise v. Purdy, 13 Abb., 434 ; Town of Lyons v. Cole, 3 T. & C., 431.