author: Birdseye, J.

text:
    Supreme Court. At Chambers, Kings,
    August 16, 1856.
    Before Birdseye, Justice.
    The People v. Peter W. Roff.
    The board of health of the town of Castleton, in the county of Richmond, has no power to make a regulation prohibiting all persons from passing from within the quarantine inclosure, situated in that town, into any other-part of the town. Such a regulation is in conflict with the powers conferred by the state on the officers of the quarantine establishment: and where a person had been arrested and committed, charged with a misdemeanor for violating such a regulation, he was discharged on habeas corpus.

    The powers of a board of health organized under chapter 324 of the Laws of 1850, considered and explained.
    On the 16fch of August, 1856, on the petition of "Peter W. Roff, alleging that he was then illegally restrained of his liberty, and imprisoned in the common jail of Richmond county, a writ of habeas corpus to the keeper of the jail was allowed, returnable on the eighteenth. The writ was then returned, and the prisoner brought up. The return showed that he was imprisoned by virtue of a commitment by Theodore Frean, one of the justices of the peace of Richmond county, dated on the fourteenth of August, of which commitment a copy was annexed to the writ and return.

      The commitment recites that Boff had been that day brought before the justice, charged, on the oath of John B. Giles, who made complaint, before said justice, in the words and figures following, to wit: “ That on or about the 7th day of August, 1856, the supervisor and justices of the peace of the town of Castleton, in said county, were duly organized as a board of health, in and for said town, pursuant to statute in such case made and provided; that on the seventh day of August instant, the said board duly met in said town, and made certain regulations to regulate, prohibit and prevent communication and intercourse with a certain place in said town, in which there were persons who had been exposed to infectious and contagious disease, to wit, with a certain place commonly known as the quarantine inclosure; that among said regulations was one prohibiting all persons passing from within the said quarantine inclosure into any other part of said town, which said regulations were then and there duly published, pursuant to statute; that afterward, to wit, on the 14th day of August, 1856, one Peter Boff did, at the town and county aforesaid, knowingly and willfully violate the aforesaid regulations of said board of health, so published as aforesaid, by willfully passing from within the said quarantine inclosure into another part of said town, to wit, into the village of Tompkinsville; and, after examination had, in due form of law, touching the said charge and accusation, the said justice did adjudge and determine that the said offence had been committed, and that there was probable cause to believe the said Peter Roff to be guilty thereof.”
    The commitment, after further reciting that the said Peter Roff had not offered sufficient bail for his appearance to answer the said charge at the next court having criminal jurisdiction, commands the keeper of the jail to receive Roff into custody in the jail, and detain him till discharged according to law.

      It appearing from this return that the party was detained upon a criminal accusation, notice was given, by order, to the District Attorney of Richmond county, as required by 2 Revised Statutes (p. 569, § 47), as amended by Laws of 1837 (ch. 240, § 2), and the hearing was adjourned till he should attend. The case was then elaborately argued on both sides.

      E. W. Stoughton, for the prisoner.

      Lott C. Clark, for the people.
   Birdseye, J.

The thirty-eighth and thirty-ninth sections of the habeas corpus act (2 R. S., 567), make it my duty to “ proceed to examine into the facts contained in the return, and into the cause of the confinement of” the prisoner; and “if no legal cause be shown for such imprisonment or restraint, or for the continuation thereof,” to discharge him from custody.

The prisoner has not denied any fact set forth in the jailor’s return, or alleged any fact to show that his imprisonment is unlawful, or that he is entitled to his discharge, as he might do by section forty-eight of the statute. But he contends that the commitment set forth in the jailor’s return does not show that any crime had been committed, for the reason that the regulation of the board of health of Castleton, set out therein, is illegal and void, as contravening the policy of the law and the provisions of the statute in reference to the quarantine establishment of the state. If this be so, there is “ no legal cause shown for such imprisonment,” and the prisoner is by law entitled to his discharge.

By the Laws of 1850 (ch. 324, p. 691, § 2), it is enacted that “ the supervisor and justices of the peace, or the major part of them, of each town in this state, shall be a board of health for such town for each year, whenever, in the opinion of a majority of such board, the public good requires it.” '

The third section of the act prescribes the powers and duties of the board of health thus constituted. That these are very broad and comprehensive will appear from an examination of the several subdivisions of this section, the third and fourth of which are these:

“ 3. To make regulations, in their discretion, concerning the place and mode of quarantine; the examination and purification of vessels, boats and other crafts not under quarantine; the treatment of vessels, articles or persons thereof; the regulation of intercourse with infected places; the apprehension, separation and treatment of emigrants and other persons who shall have been exposed to any infectious or contagious disease; the suppression and removal of nuisances; and all such other regulations as they shall think necessary and proper for the preservation of the public health.
“ 4. To regulate and prohibit or prevent all communication or intercourse by and with all houses, tenements and places, and the persons occupying the same, in which there shall be any person who shall have been exposed to any infectious or contagious disease.”

By section four of the same act, every person who shall willfully violate any regulation so made and published by any such board of health is declared guilty of a misdemeanor, and, on conviction, is made subject to fine or imprisonment, or both, at the discretion of the court, the fine not to exceed $1000, nor the imprisonment two years.

If the board of health of Castleton had the power to make the regulation in question, then the prisoner is clearly enough charged with a crime, and is liable, on conviction, to punishment more severe than many persons suffer on conviction for felonies.

The real question presented for my decision, therefore, is, whether the board of health of the town of Castleton had, under the statutes above cited, the power to make a regulation prohibiting all persons from passing from within the quarantine inclosure-into any other part of said town.

It is deeply to be regretted that any such collision should have arisen between this board of health, thus temporarily organized, and the officers whom the state has appointed to take charge of its quarantine establishment. It is the duty of those officers, and the state has given them sufficient powers, to protect the health of the town of Castleton, and the other towns in Richmond county, as well as of the cities bordering on the waters and rivers of the port of New-York. On the due performance of these duties, and the efficient exercise of these powers, may depend the health and lives of vast numbers, not merely in all these towns and cities, but throughout the whole state, and it may be the whole country. While the inhabitants of each town are justly entitled to exercise every lawful power for their own protection, and will be sustained by this court to that extent, it is not less my duty to see that they do not overstep that just limit, and, under the influence of perhaps a natural alarm at the approach of infection and disease, seek their own safety at the expense of the health of the community at large.

Such a conflict has never before disturbed our peace. If the rights and powers of the parties to the present dispute be clearly defined by the law, harmony will be restored, and, it is to be hoped, the wise and beneficent purposes of our health laws permanently secured.

But it is not merely the powers of the board of health thus organized in Castleton, with reference to the quarantine establishment of the state, that renders this case one of importance. If this regulation is valid, every other town in the state may pass a like ordinance. It may prohibit the entrance into any part of the town, not merely of persons from the quarantine establishment of the state, in charge of its health officer, and the other functionaries whom the state has appointed to assist him, but . of persons from any other town in the state, even though the board of health of such town may not think that any disease exists within it, or may decide that every case of disease has been cured. What the town of Castleton here assumes to do, towards that institution of the state, may be done towards the same town by every other town in Richmond county, or in Kings, or in any portion of the state.

So far as I discover, by a hasty reference to our statutes, the first law of the state on the subject of quarantine was the “ Act to prevent the bringing in and spreading of infectious distempers in this state,” passed 4th May, 1784, at the seventh session of the legislature. (1 Greenl. Laws N. Y., 117.) By this act, quarantine was to be performed at Bed-low’s Island, or in such other place, and for such time, and in such manner, as the governor—to whom, by the act of March 29, 1784 (id., 69), the island, called Gfovernor’s or Nutten Island, was assigned—or, in his absence from the city of Kew-York, as the mayor thereof should direct and appoint. This act contains the germ of our present quarantine system; and the provision in section three, for the appointment, by the governor and council, of a physician to inspect all vessels which may have on board, or which may be suspected of having on board, any person or persons infected with a contagious distemper, is probably the earliest provision of law in the state for the selection of a person to perform the duties of the present health officer of the port of Kew-York.

This act was amended on the 27th March, 1794 (3 id., 146), and by section five of the amendatory act the governor was authorized to appropriate Gfovernor’s Island for the pur-, pose of erecting buildings, &c., for the reception or accommodation of- any persons infected with any such distemper. On the 1st of April, 1796, another act was passed (id., 305), the first provision of which is: “ That a person practicing physic shall be appointed health officer for the city of NewYorkand extended powers are conferred upon him, most of which he possesses to this day. By the fourth section, the governor was authorized to “ cause a building suitable to serve for a lazaretto, the expense whereof, exclusive of the moneys to be expended for the purchase of lands, if any shall be purchased, not to exceed the sum of two thousand pounds, to be erected on Nutten Island, or on other lands which may be deemed more eligible, and' which other lands he is hereby authorized to purchase for the people of this state for the reception of persons,” &c., subject to quarantine. The act of February 10, 1797 (id., 367) extended the powers of the health officer to coasting vessels coming from any place south of Cape May, if he should “ deem it expedient.” By the act of March 30, 1801 (1 Webs. Laws N. Y., 361), it was enacted “ that there shall continue to be a health office in the city of New-York, under the superintendence of three commissioners, who shall consist of a health officer, and of a physician, to be styled the resident physician, and one other person; that the health officer shall reside at Staten Island, the resident physician in the city of New-York, and the other commissioner at or near the Marine hospital on Staten Island, or in the city of New-York, as a majority of said commissioners may deem most proper.”

This act fully established a quarantine system substantially like that of the present day. Many of its provisions continue through all subsequent revisions almost unchanged till now. The twentieth section (id., 368) declares: “ That the hospital erected on the easterly part of Staten Island shall continue to be denominated the Marine hospital, and shall, together with the other buildings and improvements made or to be made thereon, at the discretion of the said commissioners, and the land adjoining the same and belonging to the people of this state, be holden by the commissioners of the said health office in trust for the use of the people of this state, and the purposes specified in this act; and all vessels subject to quarantine shall come to anchor as near as may be to the said hospital, which is hereby declared to be the anchoring place for vessels at quarantine; ‘that the said health officer shall be physician of the said hospital, and the said commissioners of the health office shall in other respects have the superintendence thereof, and employ mates, nurses and attendants, and provide bedding, clothing, fuel, provisions, medicine, and such other matters as shall be requisite therein; and it shall be lawful for them to make reasonable rules and orders for the government and management of the said hospital.”

The provisions in section twenty-two of this act, in regard to persons eloping from quarantine, their apprehension and delivery to the health officer, to be detained at quarantine till regularly discharged by him, closely resemble some of the provisions of Laws of 1856 (ch. 147, § 14).

By this act (that of 1801), the quarantine establishment was reduced to a regular system, and endowed with vigorous and efficient powers. It had then been already located where it now is, and the hospital had been erected; doubtless under the authority conferred on the governor by section four of the act of April 1, 1796. It has ever since continued in that location, and has been the object of the constant attention and care of the legislature. The numerous laws that have since been passed, and the generous grants that have at times been made for its support, evince an unvarying design, on the part of the state, to omit nothing essential to the completeness and efficiency of the establishment. And if the intention of the legislature may be inferred from then: silence, as well as from their enactments, this quarantine establishment was deemed amply sufficient to guard the health of the whole state. For, until a very recent period, it was, if I mistake not, with the exception of the boards of health of New-York, Albany, and a few similar places, the only regularly constituted sanitary authority, and the only permanent sanitary establishment in the state.

The provisions of sections thirty-four and thirty-five of this act (1 Webs., 374), which are the same as those of the Laws of 1811 (ch. 175, § 33), which latter was revised and reenacted on the 26th of March, 1813 (2 R. L., 536), seem to contain the only warrant for the exercise, by the officers of the towns, of any of the powers of a board of health. The same provisions are contained in sections forty and forty-one of the “Act to provide against infectious and pestilential diseases,” passed April 14, 1820, by section forty-five of which the former act seems to have been repealed. (Laws of 1820, 222, 223.)

That act was repealed, and another with the same title enacted in its stead, on the 21st of March, 1823. (Laws of 1823, ch. 82, p. 54, § 51.) Sections forty-four and forty-five of this latter act are evidently a revision of and a substitute for sections forty and forty-one of the act of April 14, 1820. But, in the revision, all the powers of the town officers are taken away, and the health laws are confined to quarantine and the cities of New-York, Albany and Hudson, and the town of Brooklyn.

The act of March 21, 1823, was repealed by the general repealing act, passed on the adoption of the Revised Statutes. (3 R. S., 146, pl. 383.)

The fourteenth chapter of the first part of the Revised Statutes, as proposed by the revisors, contained no provision similar to those referred to in sections thirty-four and thirty-five of the act of March 30, 1801, and of some subsequent laws. (2 Revisors’ Rep., ch. 14, p. 42.) ■ In the enactment of this chapter, the legislature inserted section twenty-two of title seven. (1 R. S., 451; 3 id., 504, 2d ed.) This section provides that “ any two justices of the peace, in any town of this state, may cause all persons who shall be sick of any infectious or pestilential disease, and not being residents of such town, by an order in writing, to be removed to such place of safety within the town as they shall deem necessary for the preservation of the public health.”

Such has been "the general course of the legislation of the state, and such the comparative care and attention bestowed by the legislature on the quarantine establishment, on the one hand, and the subject of sanitaiy powers and regulations, in the towns of the state, on the other, up to the passage of the “ Act for the preservation of public health,” on the 10th day of April, 1850. (Laws 1850, ch. 324, p. 690.) But on the same day an elaborate “ Act relating to the public health in the city of New-York,” was passed (Laws 1850, ch. 275, p. 597), which seems {id., 615, § 38) to be a careful revision of all statutory provisions on the subject of the act up to that time.

It is, in my judgment, clearly my duty to construe these two laws, or such as may be substituted for one or the other of them, together ; so that both may stand, if it be possible. If that cannot be done, if they are irreconcilably in conflict, then it seems to me that the institution of the state, founded almost with the state itself, the object of its bounty and its constant legislative attention, presided over by officers carefully selected by the highest executive authorities of the state, and who are vested with large powers and set apart for the performance of highly important and delicate duties, permanent, comparatively speaking, in the tenure of their offices, presiding over the health of great cities which are exposed to infections by a widely extended commerce with all the ports of the world; that institution is to be preserved, to be kept in full vigor and efficiency; it is not to be sacrificed to the local, limited board of health of a town or village, whose members may change from year to year, meeting only when “in the opinion of a majority of such board the public good requires it,” and composed in many, if not in almost every case, of men not physicians, or familiar with disease.

It was expressly conceded on the argument, and, had it not been, I am bound judicially to notice, that that place in the town of Castleton mentioned in the regulation of its board of health, and there stated to be “ commonly known as the quarantine inclosure,” is the quarantine establishment of the state, and that it includes the marine hospital mentioned in the Laws of 1850 (ch. 275, tit. 2, § 1), and in the Laws of 1856 (ch. 147, § 1).

It is Dot to be denied that very broad and extensive powers are- conferred upon the boards of health of the several towns of the state by section three of the “ Act for ■ the preservation of the public health.” Subdivision four of this section, as above stated, gives such boards power “ to regulate and prohibit or prevent all communication or intercourse by and with all houses, tenements and places, and the persons occupying the same, in which there shall be any persons who shall have been exposed to any infectious or contagious disease.”

It was claimed on the argument that this authority was broad enough to warrant the framing of the regulation now under examination; and so, indeed, it does in terms appear to be.

It must be remarked, however, that a comparison of the two acts will not show any necessary conflict between them. Their provisions harmonize. As they were passed together, so, it seems to me, they can stand together, if the officers appointed to carry them into effect act in the proper spirit. But when a comparison is instituted between this regulation of the board of health of Castleton and the statutes establishing and regulating the hospital and quarantine establishment, they are found to be in irreconcilable conflict. The regulation must therefore be void.

This board of health, like the directors of a corporation, in framing its by-laws, was bound to frame them so as to accord with, not to violate, the provisions of the law. The legislature had a right to presume that the board, in making their regulations under this section, would act in obedience to other statutes, instead of attempting to suspend or repeal them. The legal obligation so to do is as apparent as if a proviso had been added to the section expressly declaring that the ordinances of the board were to be such only as should not conflict with the constitution or laws of the state. It could never have been the intention of the legislature to put into the hands of any board or tribunal in the state the power to suspend, or repeal, or override a statute; and that, especially, when the repeal would be merely local and temporary, like the sessions of the board of town officers in a sickly season.

It was, however, insisted by the counsel for the people that this regulation, which “prohibits all persons from passing from within the quarantine inclosure into any other part of the town of Castleton,” was not invalid or void, because the inmates of quarantine might, by shipping or boats from its water front, pass entirely round the town of Castleton, and land in other towns or counties. It is at least very doubtful, upon a comparison of the sweeping terms of this regulation with the boundaries of the county of Richmond and town of Castleton, as fixed by law (3 R. S., 2, pl. 4, 3d ed.; id., 20, § 4, pl. 1), whether even that mode of exit from quarantine is not íl misdemeanor, punishable by fine and imprisonment, if this regulation is valid; for the county and town are bounded northwardly and eastwardly “by the middle of the main channel of the bay and harbor of Hew-York,” and it will be difficult to establish that the lands and waters covering them, between the shore and the middle of the channel, are not “ within the quarantine inclosure,” and, on the landward side, the town of Castleton wholly incloses the quarantine. Let it be admitted, then, as contended, that this argument is a verbal subtlety, and let us assume that egress from quarantine by water is not prohibited by this regulation of the board of health, yet, if this board can do what they claim the right to do on the landward side of quarantine, may they not also on the seaward side? And if so, what this town does upon one of the boundaries of quarantine may be done along the boundaries of every town in the state, if, in the opinion of the majority of the board of health of the town, “the public good requires it.” What is, then, the state of things in quarantine ?

At some seasons, we know that emigrants arrive there in great numbers, and the hospitals are filled. A panic is of easy growth. The inhabitants of the adjoining towns become alarmed: it may be, with some just grounds of apprehension ; perhaps without such grounds. If three out of the five men composing the town boards of health shall be of the opinion that “ the public good requires it ” (rather an indefinite rule of action), they may pass an ordinance like the one in question, and absolutely prohibit the coming among them of any person from quarantine. How, then, are the health officer and the physician of the hospital to provide nurses, servants, attendants; to obtain food, clothing, medicines ? How are the pilots of the port to perform their duties ? They are bylaw (Laws 1856, ch. 147, §§ 8, 9, 10) to bring every vessel they find to be infected into the anchorage at quarantine, and to report all the violations of that law, as soon as may be, to the health officer. Can they, by merely stepping on the deck of a vessel outside Sandy Hook, and going ashore from it at quarantine, to report to .the health officer, be prevented by a regulation like this from pursuing their calling ? For that is, or may perfectly well be, the effect of such a prohibition. And what, then, becomes of the commerce of the port ?

By section fifteen of the same act, the commissioners of emigration are required to “ remove from the marine hospital and take charge of all indigent emigrants whose quarantine has expired, and who shall have sufficiently recovered from the diseases with which they were admitted, on the notification, in writing, of the health officer that such removal will not, with ordinary care, endanger the safety of the individual or the health of the community.” Suppose such a notice to be given by the health officer to the commissioners of emigration: one of them goes into the quarantine inclosure, with proper assistants and means of conveyance, to remove such emigrants; but, on offering to leave quarantine, the way is absolutely closed by this ordinance of the town of Castleton. He turns to the next adjacent town on the island, or to the contiguous town in Kings county, and finds, or he may find, if this ordinance is valid, a similar barricade blocking his way there. But the statute requires that he “ shall remove ” the emigrants and take charge of them. Whom shall he obey, the officers of these towns or the statutes of the state?

But this is not yet a full statement of the case. The health officer himself, as well as the physician of the hospital, and all their deputies, assistants, nurses and orderlies, are clearly within the terms of the regulation, and are absolutely prohibited from passing out of the quarantine inclosure. The health officer is (Laws 1850, ch. 275, § 4) made one of the commissioners of health of New-York city. By other provisions of the statute, he is required to attend the meetings of the commissioners, at the city hall, in New-York, daily ; while he is also required by law “ to reside within the quarantine inclosure.” How is he to comply with these several requirements ? If he can be prevented from making use of the streets in Castleton, its docks and wharves, and the same ferry accommodations that other residents of that town avail themselves of in passing to and from his duties in New-York, is he not seriously crippled in the performance of functions of the most vital importance to the whole population of all these cities and towns? He is, in my judgment, clearly entitled to enjoy every facility for the discharge of his onerous duties; and this as well from the clear spirit of the law as from the express provisions of the statute, that “ it shall be the specific duty of all magistrates and civil officers, and of all citizens of the state, to aid, to the utmost of their power, the board of health, and all the health officers mentioned in this act, in the performance of their respective duties." (Litios 1850, 615, §36.) But if this regulation is valid, a similar act of the board of health in New-York may prohibit his landing on any wharf or passing through any street in that city, and absolutely prevent the performance of his statutory duties.

It was, however, contended on the argument that he had no right or power to perform any official act or discharge any duty outside the quarantine inclosure. There are many other provisions of law than those above referred to, which show that he may, if they do not clearly require that he shall, go abroad from the inclosure to perform his duties. {Laws of 1856, ch. 147, §§12, 13, subds. 1-4, §14, &c.) But were the position correct, it is, at least, a matter of doubt if that officer, whom the state has selected to ward off infection and disease from its whole people, can, by the board of health of a city or town, be declared to be so dangerous to public health, by reason of the mere performance of his statutory duties, that he may be absolutely prohibited from leaving the quarantine inclosure. If he may, then the board of health in Northfield or Southfield might impose the like restraint on the physician who has been appointed health officer of Castleton by its board of health, should it be found that he was attending a case of small-pox or infectious fever.

But it was also contended, in argument, that this regulation might be void so far as the health officer was concerned, and yet be good as to the prisoner and others.

Although I cannot admit the soundness of the position, nor allow that a prohibition to all persons means, and shall include, only certain classes of persons, and may therefore be valid, still, it may be proper to treat it for a moment as sound, and to look at the regulation from another point of view.

Suppose a person, no matter whether he be a destitute seaman or emigrant, or the wisest, best and richest citizen in the state, has arrived at the anchorage ground in a vessel, and has been found sick with the yellow fever; has been 'stint by the health officer to the marine hospital; has been attended there by its physicians and nurses, and has been reported by the physician, to the health officer, “ as sufficiently recovered from sickness to be discharged from the hospital” (Laws of 1856, 239, § 35, subd. 3); suppose him, also, to have received from the health officer such a discharge as that officer is, by section fourteen of the same act, authorized to grant: what are the rights of such a party ? The state has subjected him to a long confinement, it may be to a very onerous one, at great loss in a pecuniary point of view, and to the deprivation of many comforts which he might have enjoyed at his own dwelling, outside the quarantine inclosure. To have gone out, even to his own house, would have made him “guilty of a misdemeanor, punishable with or by fine and imprisonment.” (Id., § 13.) But he has submitted to all the requirements of the state authoiities, and has passed through the period of quarantine. Has not the state, by imposing these penalties, incurred reciprocal duties ? Shall it not in return assure to him the right of restoration to civil and social life ? Can it be that upon the outside of the wall there are another set of functionaries, who may subject him to another similar detention? But let him submit to that in. Castleton; is he still safe ? When he reaches Northfield or Southfield, or crosses into Hew Utrecht, may not each of those towns, in succession, “ put him to his purgation ?”

And where shall this state of things stop ? Clearly, if it may exist in Castleton, it may in every town between that and Canada. The result shows the entire absurdity of the attempt to assume such powers. It shows that the decision of the proper officers in quarantine is final and conclusive; that at least there is not, and in the nature of things cannot be, any such board of appeal from those decisions as the town authorities of Castleton have sought to set up.

I have said that this illustration shows the entire absurdity of the regulation in question. That, however, is not strictly true. For the regulation “ prohibits all persons from coming from the quarantine inclosure into any other part of the town.” It does not allow to the outside board of health themselves, or to any other authority, either the right or the power to examine persons offering to leave quarantine; to decide that some are fully cured, and may, therefore, again mingle in life, while others are not yet fully freed from infection, and therefore require further care, and to be sent to the lazaretto of the town, that their cure may be completed.

The health officer can send to the hospital only those that are sick, and can retain in quarantine only for limited periods those who have been exposed to infection. But this regulation sentences all persons, well or sick, whether exposed to infection or not, to an unlimited imprisonment. That imprisonment, too, it may be added, is not such an one as under any quarantine law can be- adjudged to be valid; for it is one where the restraining power does not take, and cannot by possibility take, any measures whatever either to support the life or to improve the- health of the party confined, or to free him from infection, that at some future period he may again enjoy the privileges of a member of society.

Such a regulation is clearly not a compliance with the provisions of the statute constituting the town boards of health. With the power to prohibit is given, also, the power to regulate. The fourth subdivision “ authorizes them to regulate and prohibit or prevent all communication or. intercourse,” &c. In my judgment they must exercise the powers of regulating and of prohibiting together. They can exclude from their limits, not “ all persons,” but such only as, on a proper examination, may be found dangerous to the health of the town. Certainly no person can look through the numerous statutes -which- the legislature have so carefully framed for the regulation of their officers at quarantine, and can observe with what caution every provision is made subservient to the comfort of patients and to their prompt restoration to sound health and to their duties in society, and be blind to the fact that this regulation, now sought to be enforced by fines and imprisonments, is at open war with the whole policy of the state from its foundation. It assumes powers and claims rights and privileges never yet arrogated by the supreme legislative body of the state, that fountain whence this board derives not only its authority, but its very existence. To sustain such assumptions is to create in every town in the commonwealth an irresponsible tribunal, whose only rule of action shall be what, in their opinion, “ the public good requires.”

The public health is doubtless an interest of great delicacy and importance. Whatever power is in fact necessary to preserve it will be cheerfully conferred by the legislature, and carried into full effect by the courts.

But it can never be permitted that, even for the sake of the public health, any local, inferior board or tribunal shall repeal statutes, suspend the operation of the constitution, and infringe all the natural rights of the citizen. .

I feel no hesitation in declaring this regulation void. Disobedience to it constitutes no crime. The prisoner is discharged.


source: Caselaw Access Project

author: By the Court, Mullett, J.

license: Public Domain

text:
    Supreme Court. Erie General Term,
    September, 1856.
    Bowen, Marvin and Mullett, Justices.
    The People v. Samuel Jillson.
    Under the thirty-fifth section of the act of 1850, entitled “ An act to authorize the formation of railroad corporations, and to regulate the same,” a conductor of a train is protected against an indictment for assault and battery, for putting out of the cars a passenger who refuses to pay his fare, if he use no unnecessary force; and where a passenger has refused to pay his fare, and the train has been stopped for the purpose of putting him out of the cars, the right of the conductor to put him out is not taken away by his then offering to pay the fare.
    The relations and rights of a passenger, as regards the railroad company in whose cars he travels, discussed by Mullett, J.
    This was a certiorari to the court of sessions of Genesee county.
    It appeared, by the return to the said writ, that Samuel Jillson was, on the 26th day of September, 1854, indicted in the said Court of Sessions, for an assault and battery on James McCormick, and that the indictment was tried in the said court on the 28th day of September, 1855 ; upon which trial the following bill of exceptions was taken by the counsel for the defendant, and signed and sealed by the court:
    “ It was admitted, on the part of the people and of the defendant, for the purposes of the said trial, that, during the month of August, 1854, the Canandaigua and Elmira Railroad Company were a corporation organized under the law of this state; that they operated a railroad from Elmira to Niagara Falls, through the villages of Le Roy and Batavia, and that the defendant was employed by them as a conductor on said road. It was proved on the trial that, in August, 1854, James McCormick, the complainant, took a seat in the cars of the company, at Le Roy, to be carried to Batavia, a distance of ten miles; that soon after the train left Le Roy the defendant, as the conductor of the train, came to McCormick to receive his fare; that McCormick told him he was going to Batavia, a distance of ten miles, and tendered him a twenty-five cent piece as the fare ; that the conductor declined to receive it, and told him the fare was thirty cents; that McCormick said he had frequently been carried over the road from Le Roy to Batavia, and had never paid but twenty-five cents; that the defendant told him the company had recently made a regulation requiring passengers who did not purchase tickets before taking their seats in the cars to pay at the rate of three cents a mile; that McCormick replied that he should not pay but twenty-five cents; that the defendant then told McCormick that he left no other way for him, the conductor, but to stop the train and let him, McCormick, get off; that McCormick said the conductor would have to put him off, as he should not pay but twenty-five cents; that the conductor then pulled the bell-rope, as a signal to the engineer to stop the train, and the speed of the train was slackened; that after the bell-rope was pulled and the train had slackened its speed, but before it had quite stopped, McCormick offered to pay the defendant the thirty cents, but the defendant told him that as he had obliged him to stop the train the offer was too late, and declined it; that the train having stopped, the defendant laid one or both hands on McCormick’s shoulder or arms, without hurting him, and told him he must leave the train; and that thereupon McCormick said he would leave rather than to have a fuss, and voluntarily rose from his seat and left the train while it was not in motion. It was also proved that, in the fore part of July, 1854, the company made a regulation, to take effect on the fifteenth of that month, by which passengers not purchasing tickets before taking seats in the cars, should be charged at the rate of three cents a mile, and that printed notices of such regulation were posted, on the fourteenth of said July, in conspicuous places at the passenger station at Le Roy, and remained so posted there several months. It was also proved that the place where the train was stopped, for the purpose of putting the complainant out of the cars, was near the Le Roy station and several dwelling-houses; and the District Attorney stated that he did not claim but that it was a proper place for that purpose, provided the defendant had a right in other respects to put him off. There was no conflict of evidence upon any material fact in the case.
    The court charged the jury that the company had a right to make the regulation proved, and it was the duty of the defendant, as the agent of the company, to enforce it; that the complainant was bound to pay the fare demanded, and, having refused to do so, the defendant had a right, and it was his duty, to stop the train and put him off.
    The defendant’s counsel requested the court further to charge the jury that the defendant was not bound to receive the fare tendered after the signal to stop the. train had been given and the speed of the train had slackened. The court refused so to charge, to which refusal and ruling of the court the defendant’s counsel duly excepted.
    The court further charged the jury that although the defendant had a right to put the complainant off the train on his refusal to pay the fare demanded, yet that right was done away by the complainant’s subsequent offer to pay; and the defendant was bound to receive the fare, and permit the complainant to remain on the train. To which ruling and decision of the court the defendant’s counsel duly excepted.
    The defendant’s counsel also requested the court to charge the jury that, in any view of the facts, the defendant, upon the law of the case, was entitled to an acquittal, but the court declined so to charge. To which refusal and ruling ruling the defendant’s counsel duly excepted.
    Upon which evidence the jury convicted the defendant; and the defendant’s counsel presented, and the court signed and sealed, the above exceptions.

      This certiorari was argued in this court, at the September general term, 1856, by

      Smith & Lapham, for the plaintiff in error.

      S. Wakeman (District Attorney), for the defendant in error.
   By the Court, Mullett, J.

Although the subject matter of the controversy between Jillson and McCormick, in a pecuniary point of view, appears to have been trifling, yet the principles involved in it are of great importance, both to railroad companies and to their passengers. That railroad corporations are to be deemed carriers of passengers, and as such subject to the duties and liabilities, and entitled to the privileges and powers, incident to that employment, seems to be now well settled by various judicial decisions, as well in this country as in England. (Camden and Amboy R. R. and Transp. Co. v. Burk, 13 Wend., 611; Holbrook and Wife v. Utica and Schenectady R. R. Co., 16 Barb. S. C. R., 113; Hagerman v. Western R. R. Co, id., 353; The Commonwealth v. Powers, 7 Metc., 576 ; 1 Am. Railw. Cas., 396, note 1; Pickford v. Grand Junction R. R. Co., Mees. & Wels., 372.)

As corporations, they have a privilege to use their own united powers and property in a particular way or business, as well for the benefit of the people generally as for themselves. They, like common carriers of property, exercise a public employment, which they have no right, unreasonably, to decline; but they are not, like common carriers, insurers of the persons carried, and absolutely liable for all injuries except those, occasioned by the acts of God or a public enemy, though they are to conduct their business, in all its branches, with all the care which human prudence and skill can suggest. Anything short of this will make them liable for the consequences. (16 Barb. S. C. R., 113, 355.)

A railroad company, both as the proprietors of their road, the houses, buildings, engines and other real and personal property connected with the road, and as carriers of passengers, have authority to make reasonable and suitable regulations in regard to persons proposing to pass or repass on the road in the. passenger cars, and in regard to all other persons making use of such road, houses, buildings, engines or property. Such authority is incident to the ownership of the property, and to their employment as passenger carriers; and all such regulations will be deemed reasonable which are suitable to enable the company to perform the duties they undertake, and to secure their own just rights in such employment, and also such as are necessary and proper to insure the safety and promote the comfort of passengers. (7 Metc., 596; S. C., 12 id., 482; Cheney v. Boston and Maine R. R. Co., 11 id., 121; Chillon v. London and Roydon R. R. Co., 5 Eng. Railw. Cas., 4; Eastern Counties R. R. Co. v. Broom, 2 Eng. L. and Eq., 406; Roe v. Birkenhead and Lancashire R. R. Co., 7 id., 546.)

The power which the company have to make and enforce such regulations they may delegate to suitable officers, as agents of the company. Indeed, this is the only mode in which a corporation aggregate can exercise its powers. (7 Metc., 596.) The regulations which the company may make do not partake of the nature of penal laws, to punish the passenger for having done or neglected to do any act, but are simply an annunciation of the terms and conditions upon which the company propose to let the passengers have seats in their cars, or to partake of the use of their road, or some part thereof, for the time being. They are made to regulate the future intercourse between the carriers and the passengers, and not to redress or punish former violations of duty. In the case of Hall v. Powers (12 Metc., 482), the Supreme Court of Massachusetts refused to sanction the proposition that a superintendent of a railroad station had a right to order a person to leave the station and not to come there any more, and to remove him by force if he did come, if, in the judgment merely of the superintendent, such person had violated the regulation of the company, but conceded that the superintendent might rightfully remove persons who actually violated such regulation. (Am. Railw. Cas., 396, note 1.) By the above proposition it appears that the relation between a railroad company and him who travels on the road as a passenger is not founded upon a contract, express or implied, but is governed by the general duties of the company as a common carrier of passengers, and such reasonable and proper regulations as the company may, from time to time, make for the security of their own just rights and the safety and comfort of the passengers. The passenger, by availing himself of the privileges of a passenger, assumes the duties of one. The whole relation is formed with railroad rapidity and accuracy. The railroad company, by being the owner and having the possession of the road, cars, and machinery for running them, and being responsible for the safe and proper conducting of that business, has the power as well as the right to enforce a compliance with the terms of this relation on the spot. This right they have as well by the general principles of the common law as by the statute. (Laws of 1850, 231, § 35.)

In the case under consideration, McCormick had taken his seat as a passenger. This he had a right to do without any contract or agreement with the conductor or company for that purpose, unless the conductor for some cause connected with the general conduct of his business, or the safety or comfort of his passengers, had forbidden him. By taking the seat he assumed the duties of a passenger, one of which was to pay the fare when called on. By the thirty-fifth section of the act of 1850, to authorize the formation of railroad corporations, and to regulate the same, it is declared that, “ if any passenger shall refuse to pay his fare, it shall be lawful for the conductor of the train and the servants of the corporation to put him and his baggage out of the cars, using no unnecessary force, at any usual stopping place, or near any dwelling-house, as the conductor shall elect on stopping the train.” If McCormick, in this case, did not violate the thirty-fifth section of the railroad act of 1850, it is difficult to understand how he could do so. When the conductor called upon him for his fare, told him what it was, and even referred to the regulation of the company fixing it at the amount demanded, McCormick replied that he should not pay but a less sum, naming it, and when the conductor then told McCormick that he left no way for him, the conductor, but to stop the train and let him, McCormick, get off, McCormick replied that the conductor would have to put him off, as he should not pay but the sum which he had offered; thus distinctly refusing to pay the fare and in effect defying the conductor to put him off. Under such circumstances it was the conductor’s duty to put McCormick off the cars immediately, with as much expedition as was consistent with his safety and the safety and convenience of the other passengers. He had no right to detain or delay the train to dispute with an obstinate passenger about the amount of the fare; By refusing to pay the fare demanded, McCormick relinquished his privilege as a passenger and ceased to have any right in the cars, and the conductor was authorized to put him out as an intruder. It could not be that, while the conductor was rightfully engaged in putting a person out of the cars as an intruder, such person could, by his own act, acquire a superior right to remain.

Although, from the general nature of the business of a railroad company as carriers of passengers, and the general invitation which they hold out to persons to become passengers, persons, if not forbidden, have a right to take seats in the cars, as passengers, and to retain them, on complying with the regulations for running, without any particular contract for that purpose ; yet, it appears to me that a conductor of a train of cars, as the agent of the owners, to enable him properly to manage the business, engines and property entrusted to his care, and to provide for the safety and comfort of the passengers, must have some power over the reception, rejection and expulsion of passengers, governed in some degree by his discretion, but for the reasonable and proper exercise of which he is responsible, and that the exercise of that discretion will be presumed to be reasonable and proper, unless shown to be the contrary.

Therefore, in the case under review I am of the opinion that the Court of Sessions erred in charging the jury “ that, although the defendant had a right to put the complainant off the train on his refusal to pay the fare demanded, yet that right was done a/way by the complainant's subsequent offer to pay, and that the defendant, under the circumstances of the case, was bound to receive the fare and permit the complainant to remain on the train," and that for this error the verdict in the Court of Sessions must be set aside and a new trial granted.

Conviction reversed and new trial ordered.


author: By the Court, Marvin, J.

text:
    Erie Oyer and Terminer.
    September 10, 1856.
    Before Marvin, Justice of the Supreme Court, and the Justices of the Sessions.
    The People v. Leon Tiphaine.
    The act entitled “ An act for the prevention of intemperance, pauperism and crime ” being unconstitutional, the provisions of the Revised Statutes on the subject were left in full force, notwithstanding the clause in the act repealing all previous statutes inconsistent with its provisions.
    The defendant was indicted for a violation of the excise laws. The indictment contained numerous counts, which were generally framed under the Revised Statutes relating to excise and the regulation of taverns and groceries. All the counts charged the sale of spiritous liquors without license, and some'of the counts alleged the sale in'quantities less than five gallons. The defendant demurred.

      A. Sawin (District Attorney), for the people.

      F. J. Fithian, for the defendant.
   By the Court, Marvin, J.

"Whoever shall sell any strong or spiritous liquors, or any wines, in any quantity less than five gallons at a time, without having. a license therefor, granted as herein directed, shall forfeit twenty-five dollars.” (1 R. S., 680, § 15.) “All offences against the provisions of this title shall be deemed misdemeanors, punishable by fine and imprisonment.” (Id., 682, §25.) Are these provisions of the Revised Statutes in force? There is published, in the volumes of Session Laws of this state for 1855, what purports to be “ An act for the prevention of intemperance, pauperism and crime.” (Id., ch. 231.) In the twenty-fourth section it is declared, “ all acts and parts of acts, and all charters and parts of charters, inconsistent with this act, are hereby repealed.” The provisions of the Revised Statutes, above quoted, are inconsistent with the so-called act of 1855. The latter act assumed to provide an entirely new system, as a substitute for the system of the Revised Statutes, touching the sale of liquors. By the first section the sale of intoxicating liquor is prohibited generally, except as thereinafter provided. This prohibition includes all intoxicating liquors,without regard to quantity. The Revised Statutes had no relation to strong or spiritous liquors in quantities exceeding five gallons. The second and third sections of the act of 1855 assume to regulate the sale of intoxicating liquors. The fourth section makes a violation of the provisions of the preceding sections a misdemeanor, and inflicts penalties, &c. The recent decisions of the Court of Appeals, in effect, pronounce .these four sections of the act of 1855 unconstitutional. Judge Selden says: “ The conclusion to which I am thus brought is necessarily subversive of the first four sections of the law, in their present form.” I shall not remark further upon the decisions of this court, or the opinions delivered, but shall proceed upon the ground that the first four sections are in conflict with the constitution, and that they are therefore void. What will be the consequence of this position ? These sections contained the substitute for the prohibitions and licensing system of the Revised Statutes, and they were inconsistent with the provisions of the Revised Statutes. If the provisions of these four sections were valid and obligatory as law, they necessarily abrogated the provisions of the Revised Statutes. It may be said, perhaps, that they were not inconsistent with the general prohibition contained in section fifteen. That-section impliedly permitted the sale of spiritous liquors in quantities exceeding five gallons. The prohibition in the act of 1855 extended to all intoxicating liquors without regard to quantity. By the fifteenth section of the Revised Statutes the sale was unlawful only when made “ without having a license therefor, granted as therein directed;” and the act of 1855 assumed to abrogate the license system as provided in the Revised Statutes. In short, had the first four sections of the statute of 1855 been valid, no action or indictment could have been based upon the fifteenth section of the Revised Statutes. As these four sections, containing the system substituted for and inconsistent with the Revised Statutes, are, however, null and void, having no force as law, how can it be said, in a judicial and legal sense, that they are inconsistent with the provisions of the Revised Statutes? All acts inconsistent with this act are hereby repealed. What is the meaning of “ this act?” What construction shall be given to those words ? Shall we say that they include all the language and provisions of what professes to be “An act for the prevention of intemperance, pauperism and crime ?” If we adopt this mode of construction, the provisions of the Revised Statutes are abrogated. In my opinion this is not the proper construction.

If the legislature has made a prohibition in the form of a statute, which it was not authorized by the constitution to enact as a statute, it is not a statute; it is not a law. The legislative power is vested in a senate and assembly, but this power is not- unlimited. It is restricted by the fundamental law which the people themselves have enacted, to wit, the constitution. The legislature, in exercising the power conferred, enact laws, and the law is called a statute, or, “ an act.” When the legislature transcends its power, their acts or doings are void; and whatever language they may have used, and in whatever form they may have put it, they have not succeeded in bringing into existence “an act.” Law.is a rule of action; municipal law is a.rule of civil conduct prescribed by the supreme power in the state. (1 Bl. Com., 44.) The laws consist of the unwritten laws (common law) and of the written or statute law.

Blackstone says the written laws of a kingdom are statutes, acts or edicts. (1 id., 85.) “Act,” in legislation, is a statute or law made by á legislative body; as an act of congress is a law by the congress of the United States, an act of assembly is a law made by a legislative assembly. (Bouv. Law Dic., Act.” ) Acts, are general or special, public or private. All legislative acts are laws, and if -not laws, then they are not acts of legislation. In my opinion it is important so to regard the words “ this act,” when used in that clause of a statute repealing all statutes or acts inconsistent with it. If this construction is not given, very strange and anomalous results may'follow, and it may often be difficult to determine what the state of the law is. Suppose the legislature attempts legislation touching a subject, already embraced by the law, and .declares that all statutes or acts inconsistent with it are repealed, and it is held that .the entire act is unconstitutional and void: would it be claimed that the'prior acts had been affected by the repealing clause ? If so, the legislature, without designing it, might leave the whole subject of the prior act or acts without any law whatever. Indeed, such would be. the effect in reference to the subject we are considering. Now, there is not a man in the whole state who supposes that the legislature had any intention of repealing the Revised Statutes relating to excise and the regulation of taverns and groceries, and substitute nothing in their stead.

If a statute repeals a prior statute, and then a subsequent statute repeals the repealing statute, the statute first repealed is at once revived. This is the common law rule; and why? The repealing act being annulled, struck out of existence, it is as though it had never been. Now, in the present case, strike out the unconstitutional provisions in the act of 1855 and there will be nothing in the Revised Statutes touching excise, &c., inconsistent with all that shall remain in the act. There will be some remainder, though small. It contains some new provisions which do not conflict with anything in the Revised Statutes, and which are not in conflict with the constitution. In my opinion, it would be extremely dangerous to adopt any other mode of construction when applied to our system of legislation, where the constitution is a law to the legislature; and when they exceed their power all their acts and doings are vpid. Before we can say that any of the valid, binding laws of the state are inconsistent with another law, we must know and hold that such other law has been enacted, and that it is valid and binding. This must be so, not only in relation to statutes, but also in relation to any attempt tti change the common law.

Without pursuing this question further, in my opinion the properjudicial and legal construction of the words “ this act,” as used in section twenty-four of the statute, will include only such provisions of the act as are constitutional. And as there will remain nothing in the act inconsistent with the provisions of the Revised Statutes upon which most of the counts in the indictment are founded, it follows that the demurrer is not well taken. Some of the counts are good and the demurrer is general. We might stop here. The indictment, however, contains some counts in which the averment “ in a quantity less than five gallons ” is omitted. The counts all contain the averment of sale without any lawful authority, admission or allowance, and without being licensed thereto or therefor according to law. Enough has been said to show that sales of intoxicating liquor, in quantities exceeding five gallons, is not unlawful. Those counts in which the allegations of sale, in a quantity less than five gallons, is omitted, are not good.

It has been argued that all sales in quantities less than five gallons are unlawful, and that, as the law now is, there is no authority to license the sale. This latter position is important, and I shall briefly consider it. As we have already seen, the prohibition, in the Revised Statutes, of sales in quantities less than five gallons, is not unqualified. The sale “ without having a license therefor, granted as herein directed,” is prohibited. The statute provided a licensing system. Is that system abrogated ? It is claimed that it is, in express terms, and that the effect of all the legislation and the decisions of the Court of Appeals is, that all sales in quantities less than five gallons are unlawful, and that there is no authority anywhere to license or permit sales in small quantities. If this is so, a result has certainly been produced never anticipated by the legislature or any man in the state. The legislature, in the act of 1855, undertook to confer the right to sell in any quantities upon certain persons who should comply with the provisions of the act, as specified in the several sections. This section has fallen by the decision of the Court of Appeals. By the twenty-fifth section of this act, it is declared that “ no license to sell liquor, except as herein provided, shall be hereafter granted.” This provision is undoubtedly clear and express, and would require no construction but for the facts aside from itself.

If the act had provided for granting licenses, then undoubtedly all other licenses would be prohibited; but it turns out that the act contains no provisions for granting licenses. I mean, of course, no valid provisions; as the Court of Appeals have held that' those sections of the. act, declaring who may sell and under what circumstances, are void. The legislature refer to those provisions inaccurately as authorizing licenses. Their meaning is sufficiently obvious in this respect, and I will not remark upon the inaccuracy. But as, in law, no provision is made in the act authorizing licenses, or sales at all in any quantity, what construction shall we give to this provision of the act ?

Shall we leave out the exceptions and read it thus? “ No license to sell liquor shall hereafter be granted.” No one can fail to see that this would be directly contrary to the intention of the legislature. The great leading and fundamental rule for the construction of statutes is to ascertain the intention of the legislature. It is often necessary to examine with care and to consider the entire act, and sometimes previous and cotemporaneous legislation, for the purpose of ascertaining the intentions of the legislature. In the present case, the intention of the legislature was obvious enough. They designed to substitute a new system for the old licensing system, and they supposed they had; but there was an entire failure to accomplish the object or intention. They did not intend to abrogate the old license system and leave nothing in its place. The actual intention of the legislature has failed and cannot be carried into effect, and, in my opinion, this provision in relation to licenses should be held to be nugatory.

In examining wills, if the intention of the testator cannot be ascertained, the will is void for. uncertainty. So if the intention is ascertained, but it .violates well settled rules of law, or if it be impossible to carry the intention into effect, the will is void.

In the present case, we have a right to look into the unconstitutional provisions of the act to which the legislature refer in the exception in section twenty-five,' for the purpose of ascertaining their intention, and having ascertained it, we find that it cannot be executed or carried into effect. I submit that the whole provisions affected by the exception must fall. ’

It is safer to adopt this course than to speculate as to what would have been the intention of the legislature, or what the legislature would have declared touching licenses, in the absence of the provisions which they inserted in the bill, in relation to sales.

The courts have no power to legislate. Their province is simply to declare the law as legally enacted; and if the legislature, for any cause, has failed to make itself understood, or being understood, its intention is in conflict with the constitution, the courts are to.say so, and the attempted legislation is a failure. I repeat, the intention of the legislature is clear enough. They say that certain persons may sell liquor, and they refer to this as a license, and then, in effect, say that no other license shall be granted. The system of sales provided by the legislature was a nullity. We know that they did not intend to abolish all sales in quantities less than five gallons. If we now hold, as the effect of the legislation, that all sales in quantities less than five gallons are unconditionally prohibited, we shall hold in direct conflict with the known intention of the legislature, as evinced in the Revised Statutes and the act of 1855. This, in my opinion, would be judicial legislation.

I think we should hold that the intention of the legislature, touching the question we are considering, cannot be carried into effect, as the provisions of the statutes, evincing that intention, are in conflict with the fundamental law. In my opinion, no effect can be given to that part of section twenty-five declaring that “ No license to sell liquor, except as herein provided, shall hereafter be granted.” The result is that the Eevised Statutes relating to licenses are in full force. The board of excise may grant licenses, and all sales of strong or spiritous liquors, in any quantity less than five gallons at a time, without having a license therefor, granted as directed in the Eevised Statutes, are unlawful. The demurrer must be overruled, and there must be judgment for the people upon those counts which are good, as herein declared.

Judgment for the people.


author: By the Court, T. R. Strong, J.

text:
    Supreme Court. Monroe General Term,
    December, 1856.

      T. R. Strong, Welles and Smith, Justices.
    The People v. Abram Adler.
    Form of a certiorari to remove a cause from the Court of Sessions'of a county to the Supreme Court, after verdict and before sentence.
    A private person is permitted by law to arrest without warrant and take before a magistrate one who has committed a felony; but for mere misdemeanors, after their commission, an arrest can only be made upon a warrant from a magistrate.
    The common law rule that petit larceny is a felony has not been changed by the Revised Statutes.
    On trial of an indictment for assault and battery, it is a good defence that the complainant had committed petit larceny, and that the alleged assault and battery consisted in arresting him therefor, without process, ánd delivering him to a public officer.
    Certiorari to the Monroe County Sessions. The writ of certiorari was in the following form :
    The People of the State of New-York, to the Court of Sessions, in and for the County of Monroe, Greeting:
    We, having been informed that Abram Adler, of said county, was lately in the said Court of Sessions tried and convicted of the crime of assault and battery, upon an indictment theretofore found against the said Abram Adler; and that, upon the said trial of the said indictment, exceptions to certain decisions of said court were made by the said Abram Adler, and that a bill of the said exceptions has been settled, signed and sealed by the judge composing said court, and filed with the clerk of said court; and we being willing, for certain reasons, that the said indictment and bill of exceptions, and other proceedings thereon, remaining in the said court, should be certified by the said court to, and removed into, our Supreme Court, do hereby command you, that you do certify and return, without delay, said indictment and bill of exceptions, and other proceedings thereon, into our said Supreme Court, together with this writ, so that the said Supreme Court may further cause to be done thereupon what of right and according to law ought to be done.
    Witness, E. Darwin Smith, one of the justices of our Supreme Court, at the Court-house, in the city of Rochester, in the county of Monroe, the 24th day of July, in the year one thousand eight hundred and fifty-six.
    Wm. N. Sage,
    E. A. Raymond, Clerk.

      District Attorney of Monroe county.

    The return showed that the defendant had been indicted in the Court of Sessions of Monroe county for an assault and battery on one Dennis Connors and pleaded not guilty.
    The indictment was brought to trial on 7th March, 1856.
    The District Attorney proved that the defendant, on or about 1st October, 1855, asked Connors, who was passing along in front-of defendant’s grocery store, in Rochester, to come into his store, and when in, that defendant seized hold of Connors by the collar, and held him there some time against his will, alleging that said Connors had, one week before that time, stolen from him ham and fish to the amount in value of $3. The prosecution then rested.
    The counsel for defendant then offered to prove that Connors had, one week before that time, committed petit larceny, in stealing a piece of ham and some fish, of the value in all of $3, the property of defendant; that seeing Connors pass, he seized him, and detained him upon the alleged charge, without any process or warrant, until he sent for a police officer to take him in charge, who did take him in charge and carried him before the police magistrate of Rochester.
    This was objected to by the District Attorney, on the ground that even although a private person might arrest one who had committed a felony, yet that, for a mere misdemeanor (which, for the purposes of the defence, he alleged petit larceny to be), a private person, -without warrant or previous investigation and process, could not arrest, and that if the defendant proved the facts stated in his offer, it would be no justification.
    • The court sustained the objection, and the testimony offered was excluded; to which decision the defendant’s counsel excepted.
    The jury found the defendant guilty, under the instructions of the court, and a bill of exceptions having been filed the cause was brought up by certiorari.

      T. Frothingham, for the defendant.
    I. The defendant had a right to arrest Connors, without warrant, if a felony at common law had previously been committed by him. Any private person who is present when a felony is committed is bound by law to arrest the felon, under pain- of fine and imprisonment if he escape through his negligence. (2 Hawk. P. C., 74.) There are other cases in which, though the law does not enjoin an arrest, yet it permits it. Thus, upon probable suspicion a private person may, if a felony has actually been committed by some one, arrest or direct a peace officer to arrest the party whom he supposes to be guilty. (1 Chitty Cr. L., 15, 16; 1 Hale, 588, 589; Barb. Cr. L., 477, 478, and cases

      there cited.) And if it can be proved that a felony had been committed by some one, and there was a reasonable and probable ground for suspicion, he will not be liable to an action, though it be afterwards proved that the party imprisoned was innocent. (4 Taunt., 34; 5 Price, 525.) As the object of the rule is the prevention and punishment of crime, it is immaterial whether the thief be arrested in the act, or subsequently. Public policy would not allow, and the above authority denies, any such distinction. In this case defendant offered to prove that a petit larceny had actually been committed, and that Connors was actually guilty thereof. The whole question turns on the meaning of the word felony; if it includes the offence of petit larceny, then the proof offered should have been admitted, and the defendant acquitted thereon.
    II. Petit larceny is felony at common law. (2 Inst., 183; 4 Bl. Com., 99.) Felony may be, without inflicting capital punishment, as in the cases instanced of self-murder, excusar ble homicide and petit larceny. Petit larceny is still a felony. The Revised Statutes have not reduced it to the grade of a misdemeanor. (Ward v. The People, 3 Hill, 396.) The provision of the Revised Statutes, declaring felonies petit larceny, defines statute felonies, but leaves those existing at common law untouched by the statute. In Ward v. The People (6 Hill, 144; S. C. in Court of Errors), the same doctrine was tacitly approved and affirmed, with the declaration that in petit larceny there can be no accessories, on account of the smallness of the felony. Judgment of Supreme Court affirmed. Another case in 5 Hill, does not interfere with the above doctrine; but the same judge, while reaffirming that petit larceny is felony, decides that in the section of the statute which removes the common law disqualification in all cases of conviction for “ any offence other than a felony,” the term felony, there used, only means that offence as declared and defined in the same act. (Carpenter v. Nixon, 5 Hill, 261.) The first marginal note in this case, in 5 Hill, is incorrect and is not what the case decides.
    III. The difficulty with the County Court in this case was, that they were misled by that section of the statute (2 R. S., 886, § 34, 4th ed.) defining felony, as used in the statute, viz.: “The term ‘felony,’ when used in this act, or in any other statute, shall be construed to mean an offence for which the offender, on conviction, shall be liable by law to be punished by death or by imprisonment in a state prison.” The legislature never intended to change the common law nature of this offence. The object of the definition appears to be entirely otherwise. It seems to me to be a definition used only to make plain the meaning of other enactments in the same statute when the word is used. And it does not follow that because in the same act they affix to petit larceny a lighter punishment than confinement in state prison, that therefore by reason of the supplementary definition, the offence ceases to be a felony at common law. The statute nowhere in words declares petit larceny to be no longer a felony; hence it must still remain a felony, only visited with a lighter penalty than under the common law.

      E. A. Raymond (District Attorney), for the people.
    I. A private person may arrest another while such other is engaged in the commission of a felony or breach of the peace. (Barb. Cr. Law, 549, 550, 2d ed.; 11 John., 486; 3 Wend., 350 ; 1 Chitty Cr. Law, 16, 17, 18.) But a private person is not permitted to arrest, after an affray or other misdemeanor has been committed, and before indictment found. It has been held that a constable is not justified in making an arrest, under these circumstances, without a warrant. (1 Chitty Cr. Law, 23 ; Rosc. Cr. Ev., 614; Fox v. Gaunt, 3 Barn. & Adolph., 798; Barb. Cr. Law, 550.)
    II. This permission thus extended to a private individual is limited to cases of felony, and affrays while taking place. 1. In this case, the crime with which the complainant, Connors was charged, was petit larceny, which is a misdemeanor. (2 R. S., 701, § 23; Carpenter v. Nixon, 5 Hill, 260.) 2. The defendant seized Connors several days after the commission of the said larceny. 3. The law gives to the private person a bare permission to arrest, after the commission of a felony. The circumstances should therefore be taken most strongly against him who seeks justification by them.
   By the Court, T. R. Strong, J.

A private person is permitted by law, without warrant, to arrest and take before a magistrate one who hás committed a felony. (1 Chitty Cr. L., 15, 16 ; 1 Hale P. C., 587, 588 ; Barb. Cr. L., 550 ; Holley v. Mix, 3 Wend., 350 ; 2 Hawk. P. C., 118-120); but for mere misdemeanors, after their commission, an arrest can only be' made upon a warrant from a magistrate. (2 Hawk. P. C., 121, 122; Philips v. Trull, 11 Johns., 486; Barb. Cr. L. 551.)

By the common law the crime of petit larceny is a felony. (1 Hale P. C., 530; 1 Hawk. P. C., 146.) It was supposed by the court below that the Revised Statutes have reduced the offence to a misdemeanor. There are only two provisions of the Statutes which have a bearing on the question. By 2 R. S. (p. 690, § 1), it is declared “that every person who shall be convicted of stealing, taking and carrying away the personal property of another, of the value of twenty-five dollars or under, shall be adjudged guilty of petit larceny.” Section thirty (p. 702) provides that “ the term felony, when used in this act or in any other statute, shall be construed to mean an offence for which the offender, on conviction, shall be liable by law to be punished by death or by imprisonment in a state prison.” It will be observed that the definition of the latter section applies only when the word is used in a statute; and that the former section does not use the word, and is silent as to the grade of petit larceny. The common law rule, that petit larceny is a felony, therefore, appears to be untouched, and to remain in force in respect to all questions controlled solely by the common law. (Ward v. The People, 3 Hill, 395; Carpenter v. Nixon, 5 id., 260; Ward v. The People, 6 id., 144.)

It follows, that the evidence offered, that Connors had committed petit larceny, and that the alleged assault and battery by the defendant consisted in arresting Connors therefor without process and delivering him to a public officer, should have been received, and would have constituted a complete defence to the indictment.

It is unnecessary to consider whether the declaring, by statute, the offence of petit larceny to be less than felony, would, without anything more, abrogate the rule of the common law as to the right of a private person, without warrant, to arrest for that crime.

Conviction reversed and proceedings remitted lor a new trial.