Citation Numbers: 69 N.Y. St. Rep. 476
Judges: Bartlett
Filed Date: 10/15/1895
Status: Precedential
Modified Date: 10/17/2022
This application presents the question whether magistrates in this state still possess the power to proceed summarily upon complaints against persons charged with a violation of the laws relative to the observance of Sunday. Summary proceedings against such offenders are expressly authorized by the Revised Statutes. The eighth article of title 8 of chapter 20 of part-1 of the Revised Statutes related to the observance of Sunday. It was repealed in 1886. The ninth article, however, was left in force, and provides, in section 73, as follows:
“ Whenever complaint shall be made to any justice of the peace, mayor, recorder or alderman, of a violation of either of the provisions contained in the three last articles relative to profane swearing, the disturbance of religious meetings or the observance of Sunday, or when any of such violations shall happen in the presence of such officer, he shall cause the offender to be brought before him, and shall proceed summarily to inquire into the facts; and if the person charged be found guilty, a record of his conviction shall be made and signed by such officer^ before issuing any process to enforce the same; which conviction shall be final and shall not be re-examined upon the merits in any court.” 3 Rev.. St. (Banks’ 8th ed.) 2225.
“In addition to the penalty imposed by the last section, all property and commodities exposed for sale on the first day of the week in violation of the provisions of this chapter shall be forfeited. Upon conviction of the offender by a justice of the peace of a county, or by any police justice or magistrate, or by a mayor, recorder or alderman of a city such officer shall issue a warrant for the seizure of the forfeited articles, which when seized shall be sold on one day’s notice and the proceeds paid to the overseers of the poor, for the use of the poor of the town or city.”
The words which I have underlined distinctly assume the existence of the power on the part of the magistrates named to try and convict persons accused of Sabbath breaking. I can find no warrant for holding that the jurisdiction to proceed summarily in such cases still belongs to these officers, unless the provisions of the Revised Statutes quoted at the beginning of this opinion, and applicable in terms to violations of an article which has been repealed, are to be deemed applicable to violations of the sections of the Penal Code in respect to the observance of Sunday. With some hesitation,-1 have reached the conclusion that they are thus applicable. The legislature must have intended section 73 in the Revised Statutes to have some effect, or it would not have left that section in force in 1.886, when it repealed the preceding article concerning Sunday observance. No effect can be given to the section now, so far as it relates to this subject, unless it is read in connection with those portions of the Penal Code which deal with Sabbath breaking. In the Penal Code itself is language which assumes the continued existence of the summary jurisdiction of magistrates in this class of cases. Such jurisdiction seems to have been exercised in one case, at all events, since 1886, where the
While it is true that the statutory jurisdiction to punish for crime must be plain, and not left to doubtful inference, yet the rule that statutes in pari materia are to be construed together, so as to harmonize, if possible, and give effect to the intent of the legislature, applies to statutes concerning crimes and criminal procedure as well as to other statutes; and in the light of this rule, and for the reasons given, I think that justices of the peace generally may entertain summary proceedings for the punishment of Sabbath breaking, as defined in the Penal Code. But the act under which the respondent was elected police justice of Newtown is peculiar. While it allows him to try all criminal cases that may, by law, be tried by a justice of the peace, it authorizes him to do this only “as a court of special sessions.” Laws 1873, chap. 159, § 2. Hence the provisions of the Code of Criminal Procedure apply which regulate-proceedings in courts of special sessions, and the relator, having duly elected to be tried by a jury, is entitled to a jury trial.
Writ of prohibition granted, so far as to forbid the respondent to proceed, except as a court of special sessions, allowing the relator a trial by jury. Ordered accordingly.