I cannot concur in the judgment in this case for reasons which I will state as briefly as possible. However guilty the defendant may be, he cannot be put to death until after he has had a fair trial according to the law of the land. The defendant has been tried and found guilty, but not by a jury that had any legal right or power to convict him. There was no legal power to summon, impanel or swear the jury. The jury had no power to hear or determine the facts of the case, or to render a lawful verdict. It will not do to say that the defendant was convicted by good and fair men, since a vigilance committee, without any law except the law of force, might summon just such men and thus convict and execute a man notoriously guilty. In fact, such things have been done in some of our sister states, but I assume that this court is not prepared to sanction such methods of preventing crime.
There is no dispute about the fact that the jury was summoned, organized and sworn under chapter 491 of the Laws of 1892, as amended by chapter 269 of the Laws of 1893. That statute is entitled "An act in relation to jurors and to the appointment and the duties of a commissioner of jurors in the county of Westchester." Neither the district attorney nor any one else claims or asserts that these statutes are valid laws. It is admitted by every one that they were and are unconstitutional. Article 3, section 18, of the Constitution forbids the passage of any private or local bill for the selecting, drawing, summoning or impaneling of jurors, and clearly this statute was a local bill for that very purpose since it applied only to Westchester county. An unconstitutional law is no law. Such a law is simply void. It confers no rights, imposes no duties, confers no protection, creates no office, and is as inoperative for any purpose as if it had never been passed. (Matter of Brenner,170 N.Y. 185, 194; Norton v. Shelby Co., 118 U.S. 425.) So that the jurors who tried the defendant were not obliged to appear or to be sworn or to serve. Whatever they did was their mere voluntary act and not in pursuance of or in obedience to any law. The judgment in this case, *Page 479 involving, as it does, the life of a human being, is made to hang on the form of a challenge to the panel of jurors interposed by the defendant. It is said that the challenge was not broad enough or specific enough and that, therefore, it was properly overruled at the trial.
The challenge is a method of presenting for the decision of the court some question of law or fact concerning the qualifications of a juror or the validity or legal organization of the panel. In this case the challenge was in writing signed by the defendant's counsel and covers two pages of the record. It stated, among other things, (1) that the jurors were not selected or drawn under any of the provisions of the Code; (2) that they were selected and drawn under the special law above referred to; (3) that the defendant claimed that such special law was unconstitutional, and (4) that it contravened article 3, section 18, of the Constitution. Then follow some other statements in the same paper in the form of offers of proof: (1) To show that the jurors were actually drawn and summoned under the special law for Westchester county; (2) to show that the special statutes already referred to were not reported to the legislature by any commission appointed by law to revise the statutes. The district attorney demurred to the challenge, and the court sustained the demurrer and overruled the challenge, and the defendant's counsel excepted. The very technical and untenable ground upon which the challenge was overruled appears from the fact that no one claims or ever did claim that the statutes in question were ever reported to the legislature by any commission. If they ever were that fact is matter of record, and such a record, if it existed, would be admissible in this court to support the judgment.
The only defect in the form of the challenge is said to be that it did not, in the challenging part of the paper, state that the special laws were not reported by the revision commission to the legislature, although there was an offer made to prove that fact in the subsequent part of the same paper. It seems to me that the challenge was sufficient beyond all dispute or controversy. *Page 480 When the district attorney demurred to it, he necessarily admitted the facts stated in it, and, therefore, admitted that the laws which were challenged were unconstitutional. A statement in a challenge that a law is unconstitutional is a statement of a fact, although the fact is provable only by an inspection of the record and by argument, and when it is admitted that the statute is unconstitutional, that necessarily embraces and negatives the fact that the law was reported to the legislature by a commission. Certainly a challenge need not be any broader nor more specific than a pleading intended to raise the same question. Surely a challenge must be good if it states facts sufficient to sustain a pleading intended to present to the court the same question. This court hears arguments and decides cases almost every day where the question concerning the constitutionality of a law is presented by the pleadings only by the mere allegation that such law is unconstitutional. In fact we have just decided a case in favor of a taxpayer who sought to restrain city officers from executing a statute which he claimed to be unconstitutional, and the allegation in the complaint simply was that it was unconstitutional and violated a certain article and section of that instrument. The answer denied the allegation and we held the law unconstitutional. (Cahill v.Hogan, 180 N.Y. 304.) It did not occur to us when deciding that case that it was necessary in a pleading to say anything more in order to raise the question as to the validity of the statnte, except to state simply that it was unconstitutional. The allegation of that fact amounts to the same as a statement that the legislature had no power to pass it, and it would not be good pleading to inject into the complaint or answer the reasons or the arguments upon which the allegation is based.
The defendant stated enough when he stated that the law under which the jury were drawn was a local law, and it is doubtful if it was even necessary to add to that statement that it was an unconstitutional law. But the challenge, I think, was full and complete.
A compliance with the rules of good pleading is sufficient *Page 481 in stating the grounds of a challenge. Indeed, it is more than sufficient, since a challenge may be good which would not be sufficient as a pleading. Hence it is plain that the defendant was not obliged to say anything about or negative the provisions of article 3, section 23, of the Constitution, which provides that the previous sections 17 and 18 shall not apply to any bill or the amendment of any bill which shall be reported to the legislature by the commissioners who shall be appointed by law to revise the statutes. The rules of good pleading applicable to statutes apply with equal force to constitutional provisions. The defendant interposed his challenge at least in the very language of section 18. He was not obliged to negative the things that were provided for in the subsequent sections, since in stating a cause of action arising upon a statute, it is an ancient rule that where an exception is incorporated in the body of the clause of a statute, he who pleads the clause ought to plead the exception. But where there is a clause for the benefit of the pleader, and afterwards follows a proviso which is against him, he may plead the clause and leave it to his adversary to show the proviso. (Jones v. Axen, 1 Ld. Raym. 119; Harris v.White, 81 N.Y. 532; U.S. v. Cook, 17 Wall. 168; Com. v.Hart, 11 Cush. 130; Sheldon v. Clark, 1 Johns. 513;Bennet v. Hurd, 3 Johns. 438; Teel v. Fonda, 4 Johns. 304; Fleming v. People, 27 N.Y. 329; People v. Kibler, 106 id. 321; People v. Briggs, 114 id. 56; Rowell v.Janvrin, 151 id. 60, 66, 67.) This principle is clearly applicable to the question involved in the challenge. The defendant pleaded the principal clause of section 18, article 3. The subsequent provision contained in section 23 was a modification of the principal clause. It was in the nature of a proviso, and so all that the defendant had to do was to plead the clause and leave it to the district attorney to plead the proviso.
But it is said that although the defendant may have been tried by an unconstitutional jury, yet he was not injured. This case involves much more than the rights of a person convicted of a capital offense. It involves the question as to *Page 482 how far the courts will shut their eyes and ignore plain violations of the Constitution. Constitutional safeguards are very much like fortresses that can seldom be captured by an open and direct assault. But those provisions may, like the fortress, be undermined by silent and insidious approaches. In that process precedents always play an important part, and precedents are made in such cases under the stress of some real or imaginary necessity. This case is an illustration of all that. The PetreaCase (92 N.Y. 128) is cited as showing not that the defendant was lawfully convicted, but that he was convicted in such a way that he has no cause for complaint. It was held in that case that the defendant was not injured when indicted by an unconstitutional grand jury, and that is sought to be made a precedent to uphold a conviction by an unconstitutional trial jury, apparently forgetting all the time that there is a vast difference between the two. The former is merely an accusing body that decides nothing finally. The latter are the triers of the facts, and their verdict, when supported by evidence, is final and conclusive. Therefore, I am not prepared to say that because this court once overlooked objections to the constitutionality of a grand jury that it ought now to shut its eyes to the violation of the Constitution in the selection of trial jurors. I assume that since the special law here in question has been repealed that Westchester county now has a valid law for summoning and drawing trial jurors, and it seems to me that it would be wiser to put that county to the expense of a new trial of this case rather than to hold that the defendant could properly be convicted of a capital offense by a jury drawn without warrant of law.
We are now asked to sanction two principles that are to become precedents in order to save the judgment in this case. The one is that the very narrow and technical reasoning in support of the ruling of the court at the trial, rejecting and overruling the defendant's written challenge to the panel of jurors, is sound law, and the other is involved in the proposition that in a capital case a verdict of conviction by a jury *Page 483 selected under a void law is just as good and effectual for all practical purposes as a verdict of conviction by a jury selected under a valid law. So I am in favor of reversing the judgment.
GRAY, BARTLETT, VANN and WERNER, JJ., concur with HAIGHT, J.; O'BRIEN, J., reads dissenting opinion; CULLEN, Ch. J., absent.
Judgment of conviction affirmed.