People v. McDonald , 8 N.Y. St. Rep. 494 ( 1887 )

Landon, J.:

Section 19 of chapter 534 of the Laws of 1879, as amended by chapter 124, Laws of 1886, provides 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, among which Saratoga and Fulton are not included.

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

Chapter 317 of the Laws of 1883, section 1, authorizes the appointment of game protectors, whose 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 further provides, “ 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 now, or may hereafter be brought by any individual, under or by virtue of 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 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 any 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 of 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 game protector for the district.

It was competent for the legislature to impose the duty upon existing county officers. Whether any district attorney could begin such an action in any county except his own, or for penalties incurred in other than his own or an adjoining county, we are not now called upon to decide.

Order affirmed with ten dollars costs and printing disbursements.

Mayham, J., 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.