source: Caselaw Access Project

author: Mullin, J.

license: Public Domain

text:
    William W. Porter v. Solomon G. Purdy and others.
    When in special proceedings in courts or before officers of limited jurisdiction, they are required to ascertain a particular fact, or to appoint persons to act in such proceedings, having particular qualifications or occupying some peculiar relation to the parties or the subject matter, such acts when done are in the nature of adjudications, which, if erroneous, must be corrected by a direct proceeding for that purpose; and if not so corrected, the subsequent proceedings which rest upon them are not affected, however erroneous such adjudications may be.
    The trustees of a village, under the authority conferred by their charter, ordered a sewer to be made in one of the streets, the expense thereof to be assessed on the property of the persons benefited. They appointed five persons, supposed to be freeholders, assessors, who assessed the expense on those liable to pay the same One of the persons so appointed was not in fact a freeholder. Held, that if there was a want of jurisdiction, the proceedings were assailable for that cause in a proceeding brought to review or reverse them, but were not assailable on that ground in an action against the trustees, or other collateral proceeding.
    The expenses of the survey, and the fees of the assessors, are a part of the expense of the work of building a sewer, and may properly be added to the contract price and inserted in the warrant
    This action was brought in a justice’s court in the county of Orleans, to recover damages for the unlawful seizure and sale, by the defendants, of a parlor stove and pump, the property of the plaintiff, and of the value of about eleven dollars. The defendants justified the sale' on the ground that they were trustees of the village of Medina, in said county, which was duly incorporated by act of the legislature, passed in 1855; and that, as such, they had ordered a1 sewer to be made in one of the streets of said village, as by the charter they had authority to do, and they caused the expense thereof to be assessed on the property of the persons benefited, and for that purpose appointed five freeholders assessors, who assessed the said expense on those liable to pay the same. That the plaintiff was then a resident of said town, and a portion of said expense was assessed on him; a warrant in due form of law was issued to the collector,. and the plaintiff refusing to pay the amount of the assessment against him, the collector proceeded to sell and sold the said stove and pump, and thus satisfied said assessment.
    On the trial the plaintiff put in evidence the minutes of the proceedings of the board of trustees directing the mating of the sewer, its dimensions and mode of construction, and in. relation to letting the work and appointing five assessors to assess the expense on the owners and-others benefited by the sewer. It was proved, in opposition to the objection of the defendant’s counsel, that one of the assessors did not own any land' in fee in .said village at the time of his appointment, nor did he have an estate for life in any lands therein; that he only held a contract for the purchase of some land worth $1,600, on which he was owing some $90.
    It also appeared in evidence that the expenses of mating a survey and maps of the said sewer, and the fees of the assessors, were added to the price paid for the work on the sewer, and the addition of these sums to the actual cost of the work in excavating and constructing the sewer, and the appointment of one of the assessors who was not a freeholder, constitute the only grounds on which the tax was claimed to be illegal. The justice rendered judgment for the defendants. The county court of Orleans county affirmed the judgment.
    The general term of the supreme court reversed the judgment, holding that the defendants did not have jurisdiction to issue the warrant and sell the plaintiff’s property, because one of the assessors was not a freeholder. Permission was given to the defendants to appeal to this court.

      Church & Sawyer, for the appellants.

      Bessac & Bullard, for the respondents.
   Mullin, J.

The attention of the learned judges by whom this case was decided in the court below, could not have been called to the case of Van Steenbergh v. Bigelow, (3 Wend. 42), or they would not have reversed the judgment of the county court. The case is directly in point, and decides the very question on which the learned judges reversed the judgment. In that case the plaintiff sued the defendant, who was agent of the Bristol Turnpike Company, in trespass, for laying the road of that company over his land without having acquired, as he (the plaintiff) insisted, the right so to do. The defendant justified under an-act of the legislature, incorporating said company. The plaintiff on the. trial proved the laying of the road over his land, and the damages sustained thereby and rested. The defendant put in evidence the act incorporating the company, and the proceedings required thereby, in order to enable the company to acquire a right to build their road over the land of individuals, and amongst other proceedings required, was the appointment by the first judge of Ulster county, if the parties could not agree on the amount of damages, of three persons as appraisers who, the act required, should be freeholders. After the defendant rested, the plaintiff offered to prove that one of the three appraisers appointed was not a freeholder. The defendants’ counsel objected to the evidence, and it was rejected. The plaintiff was non-suited, with leave to move to set it aside. Savage, Chief. Justice, delivering the judgment of the court upon the point under .consideration says: “The judge was certainly right in rejecting the proof that one of the appraisers was not a freeholder. Whether the appraisers were freeholders or not was not enquirable into collaterallyx The appointment had been made by an officer whose duty it was to have appointed freeholders and none other. If he erred in that particular, the appointment might have been examined in this court on certiorari, and if illegally made would have been set aside.”

There are certain points of difference between the case cited and the one before us, but these differences do not affect the principle which appli.es to both.

In Van Steenbergh v. Bigelow the appraisers were appointed by a judge, and not by the defendant or the company for which he acted. ' In this case the defendants themselves made the appointment. There is a principle pervading the cases in which questions of jurisdiction have arisen, and in which the effect of a want of it upon the rights of third persons not cognizant of the defect have been examined, and in which it has been held that while the general rule was, that want of jurisdiction rendered utterly void the process and proceedings of courts and officers, yet that third persons, whose duty it was to execute such process or give effect to such proceedings, could not be made trespassers by obeying such process, unless the want of it was apparent on the face of such process or proceedings; but that the officer or person who issued the void process, &c., was himself liable to the injured party for damages sustained.

In the case cited the company acted, and were compelled to act, upon the appraisal made by appraisers over whom or whose appointment they had no control, and hence it might be argued Bigelow in that case was brought within the principle which protects officers acting under like circumstances. But the nonliability of Bigelow was not put on any such ground. He was held not liable, because the appointment of the appraisers was a proceeding which could not be overhauled in a collateral proceeding, but must be, if at all, in one instituted directly for the purpose. The officer who executes process fair on its face, but issued in fact without jurisdiction, is protected, because it would be inequitable and unjust to hold him responsible for acts of others over whom he had no control, and for defects of which he had no notice. But Bigelow and those standing in his place are protected, because the error complained of is such that it cannot be reviewed in an action to which he is a party.

In the case cited, as well as in the one in hand, the proceedings were special and must conform to the requirements of the statute, or they will fail; and' hence, if the appointment of a person not a freeholder would be fatal in the one case it should be in the other; and if the error was not available in the one it ought not to be in the. other. The principle upon which the rule applied in the case cited rests would seem to be this: That when in special proceedings in courts or before officers of limited jurisdiction, they are required to ascertain a particular fact, or to appoint persons to act in such proceedings having particular qualifications, or occupying, some peculiar relations to the parties or the subject matter; such acts, when donej are in the nature of adjudications, which, if erroneous, must be corrected by a direct proceeding for that purpose, and, if not so corrected, the subsequent proceedings which rest upon them are not affected, however erroneous such adjudications may be.

There is a necessity for this doctrine, as without it it would be almost impossible ever to carry into effect special proceedings affecting property or persons. .

The case under consideration affords a very striking-illustration of the necessity of the principle for which I contend. The defendants were required to appoint freeholders, only, appraisers. This devolved on them the duty of ascertaining whether there were five freeholders in the corporation. To be. freeholders they must own an estate in fee or for life. The five who were designated <D were found in possession of lands, and this possession is of itself evidence, in the absence of all other proof, of an. ownership in fee. (Hill v. Draper, 10 Barb. 458, and cases cited.) Were they required to go further than this? If they had gone to the clerk’s office’ and found a deed, it might have been proved to be a forgery, or although in form a deed, yet in equity it might be shown to be a mere mortgage. If the trustees must, at their peril, appoint men who should be found to be freeholders after their titles had been litigated, or. the proceedings were void, it would be a very hazardous business to be trustees of Medina, or in any other town where such qualifications were required for such officers. The legislature never intended to impose on the defendants any such hazards. It was their duty, acting in good faith', to appoint men who were, upon the evidence before them, freeholders. If they erred, the persons whose rights were affected by the error had the right to review the proceeding, and if the appraisers appointed were not freeholders they would be removed. But if the appointment was left in force, those appointed should forever thereafter be held to be freeholders for all the purposes of that proceeding.

The principle which I understand to govern this case, was applied in Betts v. Bagley. (12 Pick. 572.) That was an action on a judgment recovered in Massachusetts, to which a discharge under the two third act of this State was pleaded. Amongst other grounds insisted upon to defeat the discharge was, that it was void for want of jurisdiction, it not being affirmatively proved that two thirds in amount of the insolvent’s creditors had united with him in the petition. But the court held that “ the officer acquired jurisdiction of the subjectmatterwhenthe proceedings were broughtbefore him by a petition, purporting to be a petition by the insolvent in conjunction with persons holding two thirds of all the debts due from the insolvent to persons residing within the United States. I say with creditors purporting to hold two thirds; and it appears to me that this is all that can be required as preliminary proof and in order to give'jurisdiction, because, whether the debts are all really due and to the amount stated, is one of the questions, and one of the most important questions, to be judicially-inquired into and determined after the court has acquired jurisdiction.” If this were not the rule, the officer who is obliged to act upon the papers presented could never know whether he acquired jurisdiction. If the creditors saw fit not to appear, these objections to the jurisdiction would not be known until an action was tried in which the validity of the discharge was tested and determined. The learned judge who delivered the opinion in Betts v. Bagley, assigns as a reason why a petition purporting to be signed by two-thirds conferred jurisdiction, that the question whether that, number did in fact sign was one of the questions to; be tried on the hearing before the officer. That was doubtless a sufficient reason in that case, but it seems to me that the principle which authorizes the court to hold that papers which purport to give jurisdiction do give it, may, with great propriety be applied to other cases, and relieve the law from the reproach to which it is subject, ot doing injustice to the innocent judge or officer who is in many cases compelled to act, and yet act at the risk of being subjected to damages for acting without jurisdiction, although he uses all reasonable precautions to protect himself and the injured party against such a result.

It was held in Graves v. Otis (2 Hill, 466), that trustees of a village did not acquire jurisdiction to cut down a street when the petition, which the statute required to be signed by a ipaj ority of those liable to be assessed for the work, had been altered after it was signed by two of the signers, and made to embrace the sidewalk in question—there not being a majority without the two who signed -.before the alteration.- This alteration might or might not be such as to attract the attention of the trustees; and if it did, they had no means of ascertaining when it was made, except by calling upon each of those Signing—a duty which ought not to be imposed upon officers who act -without compensation. It was said, if not decided, in the People v. Commissioners of highways of Seward (27 Barb. 94), that commissioners of highways did not acquire jurisdiction to lay out a highway unless all of the twelve persons signing the petition were freeholders. In this case, again, the statute makes no provision by which the commissioners' can ascertain whether the signers are or are not freeholders. The conveyance, if to any one or more of them, may not be on record; or if on record, may not in law, and in fact convey a freehold estate. Is it just that commissioners should be required at their peril to ascertain the nature of the estate of each petitioner ?

I have selected these cases from a multitude which might be cited to show the great injustice which the rigid do9-trine applied in these cases produces to innocent parties. As the law was supposed to stand in this State before Savacool v. Boughton (5 Wend. 180), was decided an officer was not protected by process fair on its face, if the officer or court issuing it had not*jurisdiction to issue it. The non-liability of the officer was asserted in that case upon the ground that it was unjust to hold him liable as a trespasser for doing what it was his duty to do without knowing, or having the means of knowing, whether his process was or was not invalid. Now, the very same consideration should excuse the commissioner of highways, or trustee of a village, when they are required to act upon evidence which they cannot be presumed to know is forged, and are without means of determining whether it is or not genuine.

If, in such case, there is a want of jurisdiction, the pro- ' ceeding should be reversed or annulled. But the officer should not be held to be a trespasser, unless he knows or has reason to know that he is acting without jurisdiction. In other words, the proceedings are assailable for want of jurisdiction in a proceeding brought to review or reverse them, but are not assailable for want of jurisdiction, in an action against the officer, or other collateral proceeding.

The doctrine of Betts v. Bagley, cited sujpra, comes directly to this result; and it seems to me that it can be productive of no harm, but on the contrary protects the public officer and. yet allows the injured party all the protection he can reasonably require.

The appointment of the assessors, in this case, was but one step in the proceedings to construct the sewer. The defendants have?; by the charter, power without petition or other action of the citizens, to order sewers to be made, and of course to do whatever is reasonably necessary to effect that object. It was their duty to conform to the provisions of the ‘charter in executing this power, and if •they did not, the proceedings were voidable. But, although voidable, they were a protection to the defendants, until reversed.

If I am right in supposing that the question' whether the assessors were freeholders was one which the trustees had the- right to decide, and that their decision on that subject cannot be reversed collaterally, then the judgment of the general term should be reversed, and that of the county court and the justice affirmed with, costs.

The expenses of the survey and the fees of the assessors, which were added to the contract price of the sewer, were a part of the expense of the work, and were properly inserted in the warrant. The expense of constructing a sewer is not limited to the cost of excavation, building the walls and covering them. Those liable should pay all the expenses actually and in good faith incurred by reason of the wqrk, and which would not have been incurred had the work not been ordered. The items of expense objected to by the plaintiff’s counsel, seem to me to be entirely proper, and properly included in the warrant.

The judgment must be reversed,.and a new trial'ordered; costs to abide the event.

IIogeboom and Seldex, JJ., expressed no opinion. • All the other judges being for reversal,

Judgment reversed,


author: Wright, J. Johnson, J.

text:
    Edward Merritt v. Justus E. Earle.
    'The law adjudges a common carrier responsible for the loss of the goods irrespective of any question of negligence or fault on Ms part, if the loss does not occur by the act of God or the public enemies. With these exceptions, the carrier is an insurer against all losses.
    By the u act of God” is meant something which operates without any aid or interference from man. When the loss is occasioned, or is the result in any degree of human aid or interference, the case does not fall within the exceptions of the carrier’s liability.
    In an action against the owner of a steamboat, to recover the value of a span of horses which were lost while being transported from Albany to New York by the sinking of the vessel in the Hudson river, it appeared that the immediate cause of the accident and loss was the contact of the steamboat with the mast of a sloop which had been sunk, in a squall, two days before, which mast was out of water fifteen or sixteen feet at low water, and was visible the day before and the same day of the accident. Held, that the loss was not caused by an inevitable accident, or act of God, within the meaning of the terms as used in the law, but might have been avoided.
    That the squall which sunk the sloop was but the remote or secondary cause of the accident, and afforded no shield to the carrier.

      Held,, also, that the fact that the contract for the transportation of the horses was made, and the property delivered on board the carrier’s vessel, on Sunday, did not exempt the carrier from liability for the loss.
    The liability of a common carrier does not rest on his contract, but is a liability imposed by law. It exists, independent of the contract, having its foundation in the policy of the law; and it is upon this legal obligation that he is charged as carrier for the loss of the property entrusted to him.
    This action was against the defendant as the owner of the steamboat Knickerbocker, to recover the value of a span of horses belonging to the plaintiff, which were lost while being transported from Albany to New York, by the sinking of the vessel in the Hudson river.
    It was admitted by the defendant in his answer, that, on or about- the 1st of September 1856, he was the owner of the steamboat Knickerbocker, and that he used the* same for the transportation of freight and of passengers for hire, as a public employment and as a common carrier between the cities of Albany and New York, on. the waters of the Hudson river. On the trial before Mr. Justice Emott, at the Westchester Circuit, in September 1858, it appeared that the plaintiff had purchased a pair of horses at Syracuse, and reached Albany with them by railroad on Sunday, the 31st of August 1856, and on the afternoon of that day they were received on board the steamboat for transportation to New York. The plaintiff paid the freight of the horses to New York, and also took passage himself. The boat left Albany for New York on Sunday evening, and about two or three o’clock on the following morning, she ran upon the mast of a sunken vessel hear Buttermilk Falls and sunk, and the plaintiff's horses were drowned. They were of the value of $450.
    The defence was that the horses were lost by inevitable accident, and that the contract for transportation having been made on Sunday, was void, and the plaintiff could not recover.
    The defendant gave evidence tending to show that the officer in charge of the boat did not know or discover that there was any obstruction in the river. It appeared, however, that the sloop sunk in a squall on the preceding Friday, owing to the neglect of the crew to lower its sails in season, and her mast was, at low water, fifteen or sixteen feet out. of water. It was also Visible on- Saturday and Sunday. *
    At the close of the evidence the counsel for the defend •ant requested the judge to instruct the jury that the plain tiff was not entitled to recover, for the reason that the loss was occasioned by an inevitable accident, against which the defendant could not have guarded by the exercise of due diligence and precaution; and because the contract was void under the statute relating to the observance of Sunday. The judge refused so to -decide, but directed a verdict in favor of the plaintiff, and the defendant excepted.
    Judgment being entered, the defendant appealed to the supreme court, where the same was affirmed. He now appeals to this court.

      J. H. Reynolds, for respondent.
   Wright, J.

There was no controversy as to the nature of the accident, or how it occurred, which caused the loss of the plaintiff’s horses. On the Friday preceding the downward trip of the defendant’s steamer a sloop had been sunk, in a squall of wind, near Buttermilk Falls, and about in the usual route on the downward passage of steamboats navigating the river. The defendant’s steamer ran upon the mast of this sunken vessel, which stove in her bottom, and she was cast away, and sunk in the water to her promenade deck in consequence. The defendant assumed this to be an inevitable accident, against which he could not have guarded by the exercise of due diligence and precaution; and, as matter of law, that it excused him from liability as a carrier. This presents one of the two questions raised by the exceptions in the case.

The law adjudges the carrier responsible, irrespective of any question of negligence or fault on his part, if the loss does not occur by the act of God or the public enemies. With these exceptions, the carrier is an insurer against all losses. The expressions “act of God” and “inevitable accident” have sometimes been used in a similar sense, and as equivalent terms. But there is a distinction. That may be an “ inevitable accident” which no foresight or precaution of the carrier could prevent; but the phrase “act of God” denotes natural accidents that could not happen by the intervention of man—as storms, lightning, and tempest. The expression excludes all human agency. In the case of the Trent Proprietors v. Wood (4 Douglass, 287), Lord Mansfield said: . “ The general principle is clear. The act of God is natural necessity—as winds and storms—which arise from natural causes, and is distinct from inevitable accident.” The same judge, in Forward v. Pittard (1 Term Rep. 27), defined the “act of God” to be something in opposition to the act of man—adding “ that the law presumes against the carrier, unless he shows it was done by such an act as could not happen by the intervention of man— as storms, lightning, and tempest.”

Another principle running through the case is, that to excuse the carrier the act of God must be the sole and immediate cause of the loss. That it is the remote cause is not enough. This is illustrated in the case of Smith v. Shepherd reported in Abbot on Shipping (part 3, ch. 4, § 1); and McArthur v. Sears (21 Wend. 190). In neither of the cases was the loss occasioned directly by natural violence, although a sudden and extraordinary flood in the one case, and a light on board a steamer which had grounded in a previous gale of wind in the other, were the remote causes. In Smith v. Shepherd, the vessel was lost by striking a floating mast attached to a vessel which had been sunk by getting on a bank that had suddenly and unexpectedly been made dangerous by an extraordinary flood. Coming in contact with the mast attached to the sunken ship, the defendant’s vessel was forced by it upon the bank, altered suddenly by the flood, and was wrecked. The flood which changed the bank was the ultimate occasion of the misfortune; but it was held to be too remote. The vessel had not been forced on the bank by winds or other extraordinary violence of nature, or without human interference. The immediate cause of the loss was the coming in collision with a floating mast which some person had attached to the sunken vessel. In McArthur v. Sears, the vessel was lost in attempting to enter port by mistaking a light on board of a steamer which had grounded in a previous gale of wind for one of two beacon lights of the port. One of the beacon lights, through some neglect, was not burning, and the light on board of the wrecked steamer was easily-mistaken for it. It was a dark night, the snow was falling, and there was a considerable wind. The mistake occasioned the loss of the vessel without any fault of her master or crew, yet it was held that the carrier was not excused.

In the present case the sinking of the defendant’s vessel was not directly caused by the act of God. The immediate cause was her running upon the mast of a sloop that had been sunk in a squall of wind á day or two previously. She was not forced upon the mast which stove in her bottom by the wind or current, and although the sloop may have been sunk by the violence of the wind, yet that was but the remote cause of the loss of the defendant’s steamer. The case of Smith v. Shepherd, in its circumstances, closely resembles the present one. In that case the defendant’s vessel ran against a floating mast attached to a vessel which had been sunk by getting on a bank suddenly changed and made dangerous by a flood, and was forced by the mast upon the changed bank and wrecked, . In this case the defendant’s vessel ran against the mast of a sloop that had been sunk in a sudden and violent squall of wind. In the former case, the changing of the bank was the “act of God,” as spoken of in the law of carriers. So in this case the sinking of the sloop was occasioned by what may be properly called the “ act of God.” But neither the changing of the bank by the flood, nor the sinking of the sloop by the sudden and violent squall, was alone the cause -of the loss of the defendant’s vessel. Human agency intervened in the one case, by attaching to the sunken vessel the floating mast with which the lost vessel came in contact; and in this other, by placing the sloop in the position in which she was overtaken by the wind. All the cases agree that by the expression “ act of God,” is meant something which operates without any aid or interference from man; and when the loss is occasioned, or is the result in any degree of human aid or interference, the case does not fall within the exception to the carrier’s liability. I am of the opinion, therefore, that had the defendant shown that the plaintiff’s loss was occasionecl by an accident, against which he could not have guarded by the exercise of due diligence and precaution, it would not have absolved him from his responsibility as a carrier.

The horses were put on board the defendant’s steamer for transportation, on Sunday, the freight paid and a receipt taken. The defendant’s second point was that he was discharged from liability on the ground that the contract to carry the horses was in violation of the statute respecting the observance of Sunday. (1 R S. 575, 676.) There is no force in the suggestion. Even if the contract were for the'performance of servile labor, there was nothing in it which required the defendant to transport or commence the transportation oni Sunday; and notwithstanding, the horses were taken on board'on Sunday, he was at liberty to detain the vessel at her dock until Monday morning. A contract made on Sunday is not void, and to invalidate a transaction under the statute, the contract must necessarily require the act to be performed on Sunday. (Boynton v. Page, 13 Wend. 425; Watts v. Van Ness, 1 Hill, 76.) However, if it was expected that the transaction was to begin on Sunday, it was not to be completed until Monday. But it is not material whether the contract made was good or bad: it was enough to entitle the plaintiff to recover, that the defendant being a common carrier, had in his custody for transportation the plaintiff’s property, and by his negligence or in violation of duty, it was lost. This gave the plaintiff a right of action, wholly disconnected from the statute relating to the observance of Sunday. (Allen v. Sewall, 2 Wend. 338.) The judgment of the supreme court should be affirmed.

Johnson, J.

There is nothing in the facts of this case which could excuse the defendant from liability for the loss as a common carrier. The immediate cause of the accident and loss was the contact of the defendant’s vessel with the obstruction, in the river. This obstruction was the mast of a sloop which had sunk in a squall two days previous. It was out of water fifteen or sixteen feet at low water, and was visible the preceding Saturday and Sunday. This was not an inevitable accident within the meaning of the term, as used in law. It might have been avoided. The squall which sunk the sloop was not the immediate proximate cause of this accident, though it may have been that of sinking the sloop. It was but the remote or secondary cause of the accident in question, and affords no shield to the defendant. (Edwards on Bailm. 455, 456; Story on Bailm., § 517; McArthur v. Sears, 21 Wend. 190.)

The fact that the contract was made and the property delivered on board the vessel on Sunday does not exempt the defendant from liability for the loss of the property. The loss did not happen on Sunday, and it was not within the contemplation of the parties when making the contract, that it would or could be wholly performed on that day. As a contract, I do not think it comes within the purview of the statute. It was not strictly a contract for servile labor, although labor of that kind would necessarily be employed, to-some extent, in its performance by the defendant. But even if it was, the contract was only to be entered upon on that day, and completed the next day in the usual course of the business of the defendant’s vessel. The statute only prohibits servile working and laboring on that day, and can be construed to avoid such contracts only as are for work or labor of that description, to be wholly performed on that day. ■ Hence it has been held that a contract made on Sunday to work for a year was good, and not within the statute; (The King v. The Inhabitants of Whitnash, 7 B. & C. 596); and in Sandiman v. Breach (7 id. 100), it was held that the statute did not include the driver and owner of a stage-coach, and that the plaintiff might recover damages of the owner of the coach for not trans- , porting him on Sunday in pursuance of a contract to be executed on that day; inasmuch as the statute did not make it illegal for stage-coaches to travel on that day. The statute does not prohibit the transportation of property on the Sabbath, either by land or by water, and therefore a contract made for the transportation of property on that day would not come within the prohibition. At common law the observance of the Sabbath was a duty of imperfect obligation. (Rex v. Brotherton, 2 Str. 702.) Any private business may be lawfully done which the statute does not prohibit, and all contracts relating thereto are valid. (Boynton v. Paige, 13 Wend. 425.) It was held in Harrison v. Marshall (4 E. D. Smith, 271), that in an action for an injury to a thing hired, it was no defence that it was hired on Sunday. In Massachusetts it has been held that a promissory note made on Sunday is good (Geer v. Putnam, 10 Mass. 311.)

But even if the contract was so far void that it could not be enforced as an executory contract, it would constitute no defence to this action. The liability of a common carrier does not rest in his contract, but is a liability imposed -by law. It exists, independently of the contract, having its foundation in the policy of the law, and it is upon this legal obligation that he is charged as carrier for the loss of property entrusted to him. (Edwards on Bailm. 466; Hollister v. Nowlen, 19 Wend. 239; Ansell v. Waterhouse, 1 Chitty R. 1.)

It is- clear, in any viéw of the case, that the defendant became, and was, the common carrier of this property, and of course all the duties and liabilities pertaining to that character attached to him in reference to such property. He is therefore liable for the loss, even if the contract in other respects could not be enforced by reason of the day on which it was made, which I do not think is the case. It would scarcely do to hold a common carrier exempt from the ordinary liability, because it was understood between the parties at the time of the undertaking that the property for some portion of the time and distance was to be transported on the Sabbath. That would be extending the statute for the observance of Sunday far beyond its object and intention. I am of the opinion, therefore, that the judgment was right, and should be affirmed.

All the judges concurring, judgment affirmed.


author: Davies, J. Denio, Ch. J. Hogeboom, J.

text:
    Ignatz Ratzky v. The People.
    The plaintiff in eiror was tried and convicted of the crime of murder, committed after the passage of the act of April 17, 1861, (Laws of 1861 chap. 803,) and prior to the passage of the act of April 12, 1862, (Laws of 1862, chap. 197,) the indictment being found and the trial and conviction had subsequent to the passage, of the last mentioned act. The court sentenced the prisoner to the punishment of death by hanging, on a day specified, without requiring any warrant to be previously issued by the governor for that purpose. Held, that as the offence was committed while the act of 1860, “ in relation to capital punishment and for the more certain punishment of the crime of murder,” (Laws of 1860, chap. 410,) was in full operation, the judgment should have b6en the one prescribed by that act, and that the supreme court should have reversed the judgment which was actually given.

      Held, also, that a wrong judgment having been pronounced, although the .trial and conviction were regular, the prisoner could not be subjected to. another trial, and would be entitled to his discharge. But that this court had. ample authority, under the act of 1863, (Laws of 1863, chap. 226,) upon the ground that the conviction had been legal and regular, and that the error, if any, was in the sentence, to remit the record to the oyer and terminer with directions to pronounce the judgment prescribed by the act of 1860. Ordered accordingly.
    Writ of error to the supreme court:
    The plaintiff in error was indicted in the Kings county ' oyer and' terminer, on the 10th day of November, 1862, for the felonious lulling of one Sisgismund Fellner, on the 18th day of October, 1861. He was convicted of the crime of murder in the first degree, at a court of oyer and terminer held in that county in April, 1863. The prisoner’s counsel moved in arrest of judgment: 1st. Upon the ground that the indictment did not sufficiently describe and charge the crime of murder in the first degree, as defined in the act of April 14th 1860, relative to capital punishment; and 2nd. That the act does not prescribe any punishment for the crime of which the prisoner was found guilty, and consequently the court had no power to impose any punishment. The court overruled the motion, • and on the . third day of August, 1863, the prisoner was sentenced to be remanded to the common jail of Kings county, and there detained until the 23 d day of September, 1863, and from there removed to the place of execution, and that there, between the hour of twelve meridian, and two in afternoon, he be hung by the neck until dead, and that the sheriff cause such execution to be done. The conviction was affirmed at the general term, and on the 19th of December, 1863, the plaintiff brought his writ of error to this court.

      S. H. Stuart, for the plaintiff in error.

      S. D. Morris, (district attorney), for the people.
   Davies, J.

The provisions and effect of the act of April 14, 1860, have been much discussed in this court, and it maybe regarded as settled: 1..That offences committed prior to the passage of that act, the offender cannot be punished in conformity with it, as it substitutes a different punishment for the crime of murder from that prescribed by the laws of the State at the time the offense was committed. It followed from this that no person could be punished for the crime of murder in the first degree where the offence had been committed prior to the act of April, 1860, so long ás the provisions of that act continued in force. (Hartung v. The People, 22 N. Y. 95. Same v. Same, March T. 1863; Shepherd v. The People, 25 N. Y. 406.) 2. That a law changing the punishment for offenses committed before its passage is ex post facto and void under the constitution, unless the change consists in the remission of some separable part of the punishment before prescribed, or is referable to prison discipline, or penal administration, as its primary object. 3. That the punishment of death was retained by the'act of April 14th 1860; that the time and manner implicating the death penalty had not been provided for by the terms of that act; and that the provision of the revised statutes, fixing such time and manner, having been expressly repealed could not be invoked, to’ supply such omission.

4. That in reference to the crime of murder in the first degree, committed after the passage of that act, and while it remained in force, the offender could be convicted ánd punished pursuant to the provisions of that act, and that the proper sentence, upon the conviction for that crime, under that act, was that the prisoner should be sentenced to suffer the punishment of death, and should at the same time be sentenced to confinement at hard labor, in the State prison, until such punishment of death should be inflicted. (Lowenberg v. The People, 27 N. Y. R. 336; Jeffords v. the same, January, 1864.)

At the time, therefore, of the commission of the offense, for which the plaintiff, in error, has been convicted, the punishment prescribed by law, was that he should suffer death therefor, and that until such punishment of death should be inflicted, he should be confined at hard labor in the State prison. If, therefore, the provisions of the act of 1860 were in full force at the time of' the trial, conviction and sentence of the prisoner, the sentence pronounced must be declared to "be illegal, as unauthorized by the terms of that act." The legislature, by the act of April 12th 1862, and which was in force as a law at the time, of the sentence, changed the punishment for the crime of murder in the first degree by a revisal of the provisions of the revised statutes, which directed the manner in which persons sentenced to death should be executed, and made it obligatory on the court to fix the day of sentence not less than four weeks nor more than eight weeks from the time such sentence was pronounced. By section second of the latter act, it is declared that no offense committed previous to the time when the act should take effect, should be affected by that act, except that when.any punishment should be mitigated by its provisions, (that is, by the provisions of the act of April, 1862); such provisions should control any judgment to be pronounced after that act should take effect, for any offenses committed before that time.. The learned justice, who tried the prisoner and pronounced the sentence of death upon him, undoubtedly acted upon the idea that the provisions of this section were applicable to the present case, and that the punishment for the. crime of murder in the first degree, had been mitigated by the law of 1862, and that consequently the punishment prescribed by the revised statutes was applicable. For by the act of 1860, the prisoner convicted of the crime of murder in the first degree was to be punished with death, and to be confined at hard labor in the State prison until such punishment of death should be inflicted. As no person so sentenced or imprisoned could be executed in pursuance of such sentence, within one year from the day on which such sentence should bo pronounced, it followed that every person so sentenced to the punishment of death had also to be punished by imprisonment in the State prison, at hard labor, at least for the term of one year. It cannot be doubted that these punishments were separable, and that it was competent for the legislature, in relation to offenses committed while the act of 1860 was in force, to declare that either of them might be omitted. Such omission resulted in a mitigation of the punishment.

But the main difficulty in the present case is, the punishment revised and provided for by the act of 1862, is different from that in 1860, in other most important particular's. It is true that both acts declare that persons convicted of the crime of murder in the first degree, shall be punished with death. But by the act of 1860, such punishment could not be -inflicted within one year from the day on which such sentence of death should be passed, nor until the governor of the State should issue his warrant under the great seal thereof, commanding such sentence to be carried into 'execution. We see, therefore, the difference in the punishment for the crime of murder, as prescribed in the act of 1860, and that prescribed by the revised statutes! This court had occasion to consider this difference in the case of Hartung v. The People, (supra), and deemed it radical. It was then said: “The change wrought by the act of 1860 in the punishment of existing offenses of murder, does not fall within either of the exceptions. It is to be construed to vest in the governor a discretion to determine whether the convict should be executed or remain a perpetual prisoner at hard labor. This would only be equivalent .to what he might do under the authority to commute a sentence. But he can, under the constitution, only do this once for all: if he refuses the pardon, the convict is executed according to the sentence. If he grants it, his jurisdiction of the case ends. The act, in question, places the convict at the mercy of the governor in office at the expiration of one year from the time of the conviction, and of all his successors during the lifetime of the convict. He may be ordered to execution at any time, upon any notice, or without notice. * If we stop here the change effected by the statute, is between an execution within a limited time to be prescribed by the court, or a pardon or commutation of the sentence during that period, on the other hand, and the placing the convict at the mercy of the executive magistrate for the time, and his successors, to be executed at his pleasure at any time after one year, on the other; the sword is indefinitely suspended over his head, ready to fall at any time. It is not enough to say,. even if that can be said,-that most persons would probably prefer such a fate to the former capital punishment. It is enough to bring the case within the condemnation of the constitution, that it changes the punishment after the commission of the offense, by substituting for the prosecuted party a different one. We have no means of saying whether the one or the other would be the most severe in a given case. That would depend upon the disposition and temperament of the convict. The legislature cannot thus experiment upon the criminal laws.” These conclusions were arrived at without any reference to the prescription of at least one year imprisonment at hard labor in a State prison, in addition to the punishment of death. We thus have one authoritative exposition of the different punishments for murder in the first degree as prescribed by the revised statutes and in the law of 1860, and that the change of punishment in that prescribed in the latter act, by substituting for the penalty prescribed by the - revised Statutes, a different one, renders the act ea: post facto and void. The act of 1860, sought to inflict a different punishment for the crime of murder in the first degree than was prescribed for that offense by law at the time of its commission. This rendered the act void, irrespective of the consideration of the additional punishment at hard labor in a State prison, for one year or more. If, therefore, the punishment declared by the act was obnoxious, in that it changed that prescribed by the revised statutes, which were in force at the time the offense was committed in the Hartung case, it logically follows that for the same reason the punishment prescribed by the revised statutes, cannot be inflicted upon a criminal whose offense was committed while ■ the act of 1860 was in force, and while that prescribed by the revised statutes was suspended, and which offense must be punished, if at all, in the manner pointed out in that act. Whether it can be so punished or not, depends upon the saving clause in the second section of the act of April 12 1862, and the act of April 24, 1863.

The second section of the act of April, 1862, declares that no offense committed previous to the time when that act shall take effect shall be affected by that act, except that when any-pumshment shall be mitigated by the provisions of that act, such provision shall control any judgment to be pronounced after the said act shall take effect, for any offences committed before that time. And section seven of that act declares that the following additional section shall be added to title one, chapter one, of the fourth pari of the revised statutes: “ Every person who shall be convicted of murder in the second degree, and of arson in the first degree as defined in that act, shall be punished by imprisonment in a state prison for any term not less than ten years.” By the provisions of the act of 1860, arson in the first degree was punishable with death and imprisonment at hard labor in a state prison until such punishment of death should be inflicted; and every person convicted of murder in the second degree was to be sentenced to undergo imprisonment in one of the State prisons, and be kept in confinement at hard labor during natural life. We see, therefore, what punishments were mitigated by the act of 1862, and that in reference to crimes of murder in the second degree and arson committed before that act took effect, they were to be punished with the milder or mitigated punishments prescribed by that act, instead of those prescribed when the same were committed. All other offenses committed previous to the time that act took effect were to be unaffected by it. The crime of murder in the first degree of which the prisoner has been convicted was, therefore, excepted from and unaffected by that act, and the prisoner upon his conviction should have been sentenced to the punishment prescribed by the act of 1860.

Great changes were introduced into the criminal code of this State in relation to the punishment of crimes by the revision of our statute law in 1830. The repealing act contained a saving clause like that found in the act of 1862, in these words: “That ho offense committed previous to the time when any statutory provisions shall be repealed shall be affected by such repeal, except that where the punishment shall be mitigated by the revised statutes such mitigated punishment shall be applicable, though the offense was committed before that time.” In The People v. Phelps (5 Wend. 19), a question was made as to the application of the Bevised Statutes to that case. The offense was committed before they took effect, and the indictment and trial were subsequent. Chief Justice Savage, in delivering the opinion of the court, observed that if this saving clause was applicable to the case, there could be no doubt that the indictment was valid; and that those statutes did operate upon thát case, he thought there could be no question. He said : “ The character of the offense remains as it was when committed, and the punishment cannot be enhanced by any act taking effect subsequently; but the proceedings must be conducted under the revised statutes. The prosecution was commenced and carried on since the first of January, and during that period the revised statutes and no other were in force. Offenses committed under the old statutes were liable to certain punishments, and no greater can be inflicted; but the prosecution must be conducted by virtue of the statutes in force when the proceedings are had.”

In view of these provisions of the statutes and these authorities, we find that the punishment prescribed by the act of i860 can only be inflicted for offenses committed while that act was in force, but that all prosecutions for such offences commenced since the act of 1862, must be conducted by virtue of the statutes in force when the proceedings are had. The saving clause in the act of 1862 preserves intact the punishment prescribed by the act of 1860, for all offenses committed after that act went into effect, and before its repeal, except when by the act of 1862 the punishment had been mitigated, and in such case the mitigated punishment is to be inflicted. But although a part of the punishment on conviction for the crime of murder in the first degree, namely, that of imprisonment in the State prison until the death penalty should be executed, was taken away by the act of 1862, and which might lawfully be done, as it was clearly separable from the other, and was an increase and in. addition to the death penalty, yet we see that the punishment of death, for the crime of murder in the first degree, as contemplated by the act of 1860, is a very different punishment from that inflicted for the same offense by the provisions of the revised statutes which were brought into operation by the act of 1862. But for the saving clause of the act of 1862, the prisoner could not legally be punished for the crime whereof he has been convicted. The judgment in this case was pronounced on the assumption that the prisoner was to be punished according to the act of 1862. We think this view of the law was erroneous, and consequently the .sentence and judgment were erroneous and must be reversed. It would follow from these considerations and the authority of the case of The People v. Shepherd, (25 N. Y. 406), that a wrong judgment having been pronounced, although the trial and conviction were regular, this prisoner could not be subjected to another trial, and would be entitled to his discharge. That would unquestionably be so but for the act of April 24, 1863. In the case of Lowenberg, (supra), we held that the provisions of that act had no application to a case pending in this court at the time it took effect as a law. In the present case that act became operative before the judgment and sentence were pronounced and given, and before the writ of error was prosecuted to this court. It was, therefore, in force when the writ of error in this case was prosecuted, and its provisions are applicable to the duty imposed upon this tribunal, by virtue of that proceeding. This act declares that the appellate court shall have power upon any writ of error, when it shall appear that the conviction has been legal and regular, to remit the record to the court in which such conviction was had, to pass such sentence thereon as the said appellate court shall direct. But for the authority conferred upon this court by this statute, it would have had no power, upon reversal of the judgment of the supreme court, either to pronounce the appropriate judgment or remit the record to the oyer and terminer to give such judgment. This is well settled by authority. (The King v. Bounce, 7 Adol. and Ellis, 58; Shepherd v. Commonwealth, 2 Met. 419; Christian v. Commonwealth, 5 ib. 530; The King v. Ellis, 5 Barn. and Cress. 395; Phillips v. Barry, 1 Lord Raymond, 5; The People v. Taylor, 3 Denio, 91; O'Leary v. The People, 4 Parker Crim. R. 187; Shepherd v. People, supra.) But the power to remit the record in the present case is ample, and it was intended by the legislature to confer it under the circumstances now presented. There is no question made as to the legality or regularity of the conviction of the prisoner, and we being of the opinion that the only error committed was in not pronouncing the proper sentence and judgment upon such conviction, it is made our duty by this statute to.remit the record to the Kings county'oyer and terminer to pronounce upon the conviction the proper judgment. And this court does accordingly direct that the record in this action be remitted to the court of oyer and terminer of Kings county, and that such court do sentence the prisoner to suffer death for the crime whereof he stands convicted, and that he be confined at hard labor in the State prison at Sing Sing until such punishment of death shall be inflicted.

Wright, Sellen and Ingraham, JJ., concurred.

Denio, Ch. J.

The conclusions to which I have come upon the examination of this case are the following:

1. As the offense was committed while the act of 1860 was in full operation, the judgment should have been the one prescribed by that act, namely, that the convict should suffer the punishment of death, and that he should be confined at hard labor in the State prison until such punishment should be inflicted; but that he should not be executed, in pursuance of such sentence, within one year from the day of passing such sentence, nor until the whole record of the proceedings should be certified by the clerk of the court of oyer and terminer of Kings county, under- the seal thereof, to the governor of this State, nor until a warrant should he issued by the governor under the great seal of the State, directed to the sheriff of the county in which the State prison shall be situated, commanding the said sentence of death to be executed. The point that the act does not, in terms, prescribe the punishment of death, has been considered by this court and held not to be tenable. (Lowenberg v. The People, 27 N. Y. R. 336.)

The judgment of the oyer and terminer, which was affirmed by the supreme court, condemned the convict absolutely to the punishment of death by hanging on a day about five months after the conviction, without requiring any warrant to bé issued by the governor. This was a wide departure from the mandate of the statute, and was clearly erroneous.

It is claimed to have been justified by the effect of the act of April 12, 1862 (Ch. 197, p. 368.) The first section repeals the act of 1860, and another act not material to the present purpose. But that repeal was wholly prospective, and did not affect the punishment of offenses committed before such repeal. This is expressly declared by the second section, winch is in these words: “ No offense committed previous to the time when this statute shall take effect shall be affected by this act, except that where any punishment shall be mitigated by the provisions of this act, such provision shall control any judgment; to be pronounced after the said act shall take effect for any offenses committed before that time.”

It is argued that the word offense, as first used in the section, does not embrace the idea of punishment. But I am of opinion that such a construction would be altogether too narrow. The whole scope of the statute concerns the punishment of crimes, and when it is said that no offense committed before it should come into operation should be affected by it, the meaning is extremely clear, that the punishment which it prescribes should not be visited upon the persons committing the offenses which, on account of the time they were committed, are excluded from its scope. If it were otherwise doubtful, the exception, which declares that a mitigated punishment should, notwithstanding the general language, be applied to the case of such former offenders, makes the sense very plain. ^

2. The remaining question is, whether the judgment should be reversed and the prisoner discharged, according to the former rule, or the record be remitted to the oyer and terminer to pass a legal sentence upon the conviction. This latter course is now authorized by statute. (Laws 1863, chap. 226, p. 406.) The conviction was legal, and the sentence only was erroneous. The only question is whether the act, having been passed after the conviction, though before judgment was given in the supreme court, could be applied to the case. I am of opinion that it can be applied. The forms of judicial proceedings are under the control of the legislature. The case is not within the constitutional provision which forbids a person being twice put in jeopardy for the same offense. A person is said to be put in jeopardy only when he is a second time tried upon a criminal accusation, but the term has no relation to the reversal of an erroneous judgment and pronouncing a legal one, pursuant to one legal conviction. It may be of some importance to inquire when the existing judgment was pronounced in the oyer and terminer in reference to the time of the passage of the act of 1863. The narrative part of the record would seein to show that it was on the 20th April, 1863, which is prior to the passage of the act. But the record also states that on the 25th June following, a motion was made in the oyer and terminer for the arrest of judgment, and that it was denied on the 3d day of August ensuing. Such a motion can only be made on the verdict, and it must be before judgment. Taking the record together, we must intend that the sentence was pronounced on or after the third day of August. The case, then,, is this: After the verdict had been given, and before sentence, the legislature declare, in effect, that when an erroneous judgment is given in a court of original criminal jurisdiction, the supreme court may on error reverse the judgment alone; but if there be no error in the trial or verdict, the record is to be remitted, to the end that a proper judgment may be pronounced. If it could be maintained that the legislature could not rightfully interfere after the judgment had been pronounced in such a manner as to deprive the prisoner of the full benefit of a writ of error under the existing laws, and of the right to have the judgment reversed and to be discharged, the principle would not aid the plaintiff in error, for such was not the order of the events. I conclude, therefore, that the supreme court should have reversed the judgment which was actually given, and have remitted the record to the oyer and terminer, with directions to pronounce the judgment prescribed by the act of 1860—the form of which has been indicated. If I am sustained by my brethren in these views, such is the judgment which must be given on the writ of error.

Hogeboom, J.

The first ground of objection heretofore taken by the prisoner, that to the sufficiency of the indictment, is no longer seriously pressed, and is untenable.

The more difficult question arises under the second objection, to wit: that the sentence pronounced upon the prisoner was without authority of law, and .therefore, that the judgment should be reversed and the prisoner discharged. It is insisted that the offense was committed and the trial had, while the provisions of the act of 1860 were in force, while the punishment imposed was not in accordance with that prescribed by the act of 1860, but in* accordance with the provisions of the revised statutes which were not in force at the time of the sentence, and were not, at all events, applicable to this particular offense. It is further insisted that the act of 1860 did not in express terms, or even by necessary implication, impose the punishment of death for the offense of murder in the first degree, nor prescribe any mode in which the punishment should be inflicted, and that as the punishment of death in the mode prescribed in the revised statutes was by the act of 1860, expressly abolished, capital punishment could no longer be inflicted, first, because it was not prescribed as á punishment, and second, because no mode of inflicting it was declared.

I have, heretofore, expressed the opinion in the case of The People v. Hartung (23 How. 314), that capital punishment, for murder in the first degree, was not abolished by the act of 1860, and that it was competent for the legislature by a subsequent act (as they did in 1861), to declare the mode in which such punishment should be inflicted, even as to offenses committed before the passage of the act of 1860. To those opinions I still adhere. They are those which prevailed in the court below, except in a single particular, to which I shall presently refer. The court of appeals also, in the same case oí' Hartung v. The People (22 N. Y. R. 95), were of the opinion that the punishment of death for the crime of murder in the first degree was not abrogated by the act of I860, and this opinion was reiterated in the case of Lowenberg v. The People (26 How. 202.)

The offense of which the prisoner was convicted was committed on the eighteenth day of October 1861. The indictment was found at a court commenced on the 10th day of November 1862. According to the record presented to us, the prisoner appeared and pleaded to such indictment on the 13th day of April 1863, and was tried and convicted thereon, at a court held on the 20th day of April 1863, and thereupon, according to the record, he was adjudged to be removed to the common jail of Kings county, and there detained until the 23d day of September, (then), next and thence removed to the place of execution, and there hung by the neck until he be dead. Judgment appears to have been signed on the 3d day of August 1863. There is appended to .the record proper, a statement in the error book, that on the 25th day of June 1863, a motion was made in behalf of the prisoner in arrest of judgment, before the court of oyer and terminer, and that such motion was on the 3d day of August 1863, denied. On the 15th day of August 1863, a writ of error from the supreme court to the court of oyer and terminer was allowed by Justice Brown, and on the 18th day of December 1863, the judgment of the court of oyer and terminer was affirmed by the supreme court of the 2d district. On the 21st day of December 1863, the same justice allowed a writ of error from this court to the supreme court with a stay of proceedings thereon, and the case comes before us on the return to that writ of error, upon the record alone, without any bill of exceptions..

The course of legislation applicable to the' case has been as follows: On the 14th day of April 1860 (Laws of 1860, chap. 410), the legislature passed the act already commented on, “in relation to capital punishment, and for the more certain punishment of the crime of murder.” This act, as before stated, while it assumes and substantially declares that there are crimes punishable with death, and that persons convicted thereof shall be sentenced to suffer such punishment; also declares that such punishment shall be preceded by at least one year’s .imprisonment in the State prison, and shall not be inflicted until a warrant shall be issued by the governor, commanding the sentence of death to be carried into execution. It contains no express provision directly prescribing the punishment of death for any offense, unless it be contained in the first section of the act, which is as follows: “No crime hereafter committed except treason and murder of the iirst degree, shall be punished with death, in the State of New York.” It expressly repeals those sections of the revised statutes, which prescribe the punishment of death for murder, or so modifies the same as to require the punishment to be administered according to the provisions of the act of 1860. Among the sections thus repealed, is section 25 of title 1 of chapter 1 of part 4 of the revised statutes, which is as follows:— “The punishment of death shall in all cases be inflicted by hanging the convict by the neck until he be dead.”

On the 17th day of April, 1861, (Laws of 1861, chap. 303,) the legislature, by an act then passed, expressly revived and reinstated all the aforesaid sections of the revised statutes, (which had been repealed or modified by the act of I860,) so far as respected offenses committe’d previously to the 4th day of May, 1860, (being the day when the act of 14th April, 1860, took effect).

On the 12th day of April, 1862, (Laws of 1862, chap. 197,) the legislature expressly repealed the two last mentioned acts of 1860 and 1861, and amended the revised statutes m various particulars in regard to the offense and punishment of murder, making two degrees of the offense, and prescribing the punishment of death for murder in the first degree. In this statute is the following section: “ § 2. No offense committed previous to the time when this statute shall take effect shall be affected by this act, except that where any punishment shall be mitigated by the provisions of this act, such provision shall control any judgment to be pronounced after the said act shall take effect, for any offenses committed before that time.”

By a comparison of dates it therefore appears that the offense in question was committed after the passage of the act of 1861, and prior to the passage of the act of 1862, and that the indictment was found and the trial and conviction had subsequent to the passage of the last mentioned act. If the words “no offense committed previous to the time when this statute shall take effect, shall be affected by this act,” in the section just quoted, cover not only the offense itself but any judicial proceedings and sentence which may be had for its punishment, then the act of 1862 has.no bearing whatever upon the case under consideration, and the punishment of the offense must be governed entirely by the act of 1860; for the offense was committed previous to the act of 1862; and the act of 1861 relates exclusively to offenses committed prior to May 4, 1860, and this offense was committed since. Now the act of 1860, if applicable to this case, while it required a sentence of death to be pronounced on a conviction for a crime punishable with death, expressly required, also, that the convict should, at the same time, be sentenced to confinement at hard labor in the State prison until such punishment of death should be inflicted; which latter punishment could not be inflicted except upon the warrant of the governor and after the lapse of a year.

The sentence pronounced in this case did not in any • degree conform to this law, for it contained no clause subjecting the prisoner to confinement in the State prison, and it expressly directed the execution of the sentence of death long before the lapse of a year, and without any warrant from the governor.

It becomes necessary, therefore, to give a construction to the section in question.

I am of opinion, in the first place, that it applies to the present case, inasmuch as the offense was committed before the act of 1862 took effect. In the next place, it is clear that the offense was not affected by the act; and hence that in all particulars connected with the character and grade of the offense they must be determined by the prior law. The only prior law then in existence was that of 1860. I am further of opinion that the legislature, in saying that no offense committed previous to the passage of the act should be affected by it, intended also to say that nothing connected with the offense, whether in regard to its constituent elements or the mode of its punishment, should be affected by the act. The language is general, and embraces, I think, the penalty affixed to the commission of thevcrime as well as the crime itself. For all the purposes of such an offense the act was as completely obliterated as if it had never been passed. The act was to have no effect upon previous offenses, except that where it prescribed or mitigated punishment, such punishment should be applied. The very exception shows that except within the range of the exception contained in the section itself, the offense in all its aspects of definition, commission, indictment, trial and punishment, was. to stand wholly upon the prior law. The very next section, by way of greater caution, and to effectuate the same object, saves pending prosecutions from the effect of the general repeal.

We must, therefore, look at the exception in this section, and see if the act prescribes a mitigated punishment for the offense of murder in the first degree. If it does, the provisions of the act of 1862 apply, and the sentence in this case, which is substantially in conformity to it, may be supported, unless there be. another defect or irregularity to "which I shall presently refer. If it be not a mitigated punishment, then the provisions of the act of 1860 apply, and the sentence in this case, which is wholly different from and inconsistent with the one there prescribed, cannot be supported. The act of 1862, by express enactment, declared that persons convicted of murder in the first degree should suffer death for the same, and by necessary implication and the repeal of the acts of 1860 and 1861, revived the provisions of the revised statutes in regard to the mode of inflicting that punishment, and the time when it should be inflicted. Hence the execution must take place by hanging by the neck within eight weeks from the time of the sentence.

The act of 1860, while it provided by strong and I think necessary implication that sentence of death should be pronounced for a crime punishable with death, did not contemplate that the period of carrying such sentence into effect should be named therein, and expressly required that simultaneously with the sentence of death there should be a sentence of confinement at hard labor in the state prison until the indefinite period should arrive when the punishment of death should be inflicted. Such period could not lawfully arrive' until the lapse of one year after the sentence of death was pronounced, nor at any time afterwards, however remote, until the warrant of the executive should be issued commanding the said sentence of death to be carried into execution.

I am by no means prepared to say that the punishment prescribed by the revised statutes and the law of 1862 was a mitigated punishment, compared with that of the act of 1860. The former was temporary imprisonment followed by violent death; the latter was longer imprisonment, which might continue for life, and might or might not be terminated in the discretion of the governor, after the lapse of a year, by hanging by the neck. One involved the certain infliction of the death penalty, the other its possible permanent postponement. Indeed, it is not entirely clear that an immediate or speedy violent death would be a milder punishment than one postponed for twelve months and preceded by imprisonment.

At all events, it seems to me a punishment of an entirely different character, radically different from that of the act of 1860, and therefore obnoxious to the objection of an ex post facto law. An ex post facto law is not merely a law which punishes as criminal an act which when done was innocent, or punishes with increased severity a crime which at the time of its commission was subject to a milder penalty, but a law which essentially changes the mode or nature of the punishment. It is upon the ground of its essential injustice that such an act comes within the constitutional inhibition and cannot be passed. Audit is essentially unjust and oppressive to impose upon a particular offense a punishment radically different from that previously lawful; because it leaves to the judiciary the ungrateful and impossible task of deciding whether the modified penalty be in reality a mitigated one. In matters involving life and liberty no uncertainty should rest upon such a question, and a radical change in the mode of punishment should be condemned as ex post facto and unconstitutional, unless clearly and indisputably a mitigation of the former punishment.

For this reason I am of opinion that the judgment pronounced upon the prisoner Eatzky was unwarranted by law, and notwithstanding the reluctance felt by every well-regulated mind to discharge a prisoner, who, upon the facts, we must assume was guilty of one of the highest crimes known to the law, I see no alternative except to reverse the judgments of the courts below, and to order the discharge of the prisoner; unless we are authorized, under the provisions of the act of 1863 (chap. 226), upon the ground that the conviction has been legal and regular, and that the error, if any, is in the sentence—to remit the record to the court of oyer and terminer with directions to pass sentence in conformity with the law of 1860.

The act just referred to was amendatory of the revised statutes, and the whole, read together, provided in effect that on affirmance by the supreme court of the judgment appealed from, it should direct the sentence pronounced to be executed, and it should be executed accordingly; and that on reversal by the supreme court of the judgment appealed from, it should either direct a new trial or that the defendant be absolutely discharged—according to the circumstances of the case; “provided, however” (and this is the amendment made by the act of 1863), “that the appellate court shall have power, upon any writ of error, when it shall appear that the conviction has been legal and regular, to remit the record to the court in which such conviction was had, to pass such sentence thereon as the said appellate court shall direct.”

This provision of the revised statutes, although nominolly referring only to the supreme court, was intended, as is, I think, sufficiently obvious from the context, especially when considered in connection with the language of the act of 1863, to embrace all appellate courts which should sit in review of the original judgment. We may, therefore, assume that it covers the action of this court. We must further assume that the conviction has been legal and regular; for nothing appears to warrant a contrary presumption, and no bill of exceptions is presented alleging any error on the trial.

The only question that remains is, whether the legislature intended to pass the act in question so as to apply the same to offenses previously committed, and for which indictments had already been found; and if so, whether it was competent for them to do so, or whether the act was designed, and must be construed to operate only upon offenses thereafter perpetrated.

Before discussing that question it is proper to remark that, as the record now stands (and nothing else is properly before us), the sentence was pronounced on the 20th day of April, 1863—four days before the passage of the act of 1863—which took place on the 24th day of April. 1863. This presents to our- view two fatal difficulties with the sentence as it now stands. 1st. That it does riot come within the saving operation of the act of 1863, but for which I think the prisoner would be entitled to an absolute discharge; and 2d. That if the sentence ought to have been pronounced under the revised statutes, it is void as naming a day for execution beyond the eight weeks’ limitation fixed therein as the maximum period which can intervene between the day of sentence and the day of execution.

We cannot, as it appears to me, take notice of the fact suggested, outside of the record, that the sentence of the court was not pronounced till the third day of August, 1863. The record avers the contrary, and if the fact be really otherwise, I see no other mode of introducing it into the record than to remit the proceedings to the court below, ,yith permission to apply to that court to amend the record •ío as to conform to the truth of the case.

We are not, therefore, in a situation, and have not the legal right to affirm this judgment in its present condition; and we must either reverse it absolutely, and direct the dis-', charge of the prisoner, or we must suspend judgment thereon, and remit the proceedings to the court below to enable the people to apply for the amendment indicated.

I am in favor of this latter course; and if it shall be adopted, it remains to consider whether it is advisable at this time to declare our opinion in advance upon the construction and constitutionality of the law of 1863, upon the assumption that the question is likely hereafter to arise upon the amended record.

On the whole, as the question does not now arise, and may perhaps never arise', and has not been fully discussed in the arguments hitherto made, I think it premature to express an opinion upon it at this time. I think further proceedings should be for the present stayed in this court, and the record remitted to the court below, to enable the defendants to apply for an amendment thereof, if they shall be so advised.

Johnson, J., concurred in the views of Hogeboom, J., and was in favor of suspending the proceeding to permit an amendment of the record.

Mullin, J., read an opinion sustaining the sentence.

Judgment reversed, and the record directed to be remitted to the court of oyer and terminer, with directions to sentence the prisoner to suffer death for the crime whereof he stands convicted; and that he be confined at hard labor" in the state prison until such punishment of death shall be inflicted.