I cannot concur in the decision about to be handed down. The statement of facts contained in the prevailing opinion is sufficient to indicate the question presented. That question, presented in its narrowest compass, is, does section 52 of the Workmen’s Compensation Law make the failure of'an employer to secure compensation a misdemeanor punishable under section 1937 of the Penal Law. Prior to the enactment of chapter 622 of the Laws of 1916, section 52 of the Workmen’s Compensation Law read as follows:
“ § 52. Effect of failure to secure compensation. Failure to secure the payment of compensation shall have the effect of enabling the injured employee or his dependents to maintain an action for damages in- the courts, as prescribed by section eleven of this chapter.”
By said chapter this section was amended to read as follows:
“ § 52. Effect of failure to secure compensation. Failure to secure the payment of compensation shall constitute a misdemeanor and have the effect of enabling the injured employee, or in case of death, his dependents or legal representatives, to maintain an action for damages in the courts, as prescribed by section eleven.of this chapter.”
The principal change made in this section was to declare that the failure to secure compensation should constitute a misdemeanor. By this amendment I think the Legislature intended to make some change in the law upon this subject. I cannot believe that this amendment was inserted in the statute for the mere purpose of denouncing the act for which *301it had previously prescribed penalties. If a change was intended, then the only change possible was to make the act complained of a misdemeanor punishable under section 1937 of the Penal Law. In Behan v. People (17 N. Y. 516) it was held that the construction of a statute imposing penalties was merely a question of legislative intent. In that case the act under consideration was chapter 628 of the Laws of 1857. Section 13 of that act provided: “ Whoever shall sell any strong or spirituous liquors or wines in' quantities less than five gallons at a time, without having a license therefor, granted as herein provided, shall forfeit fifty dollars for each offence.” Nowhere in the statute is such a sale declared to be a misdemeanor. Notwithstanding this fact the court held that it was the legislative intent to make that offense a misdemeanor. It came to this conclusion by reason of the fact that previous acts upon the subject had so declared, and by reason of the fact that in the act violations of the act were spoken of as “ offences,” and it concluded that it was the legislative policy to continue such acts as misdemeanors notwithstanding the omission so to declare. The court ' arrived at this conclusion notwithstanding the fact that some other violations of the statute were expressly declared to be misdemeanors. The comment on this case in the prevailing opinion is that the act complained of was unlawful prior to the statute. This is true, but it was made unlawful by statute. There is, however, authority for holding that where a penalty is prescribed by statute which makes criminal an act which theretofore was not criminal, an offender is hable both to the penalty and to the criminal punishment, notwithstanding there is no express declaration making these forms of punishment cumulative. In Rex v. Gregory (5 Barn. & Adol. 555) it was held that an act declaring a building erected within ten feet of a public street a common nuisance and providing for a summary proceeding by which the offender was to be brought before two justices of the peace, who might convict the person so offending and make such order for the removal of such erection or building as to such justices shall seem proper, permitted both forms of punishment, to wit, the order directing the removal and a fine or imprisonment for maintaining a common nuisance. (See 26 Geo. III, chap. *302131, § 34; 3 Geo. IV, chap, cxii, §§ 126, 128.) This is very closely analogous to the statute under consideration, because the statute here provides for a penalty equal in amount to the pro rata premium which would have been payable for insurance in the State fund for the period of non-compliance and deprives the employer in case of accident of several defenses available at common law. (See §§ 11, 50, 52, as amd. by Laws of 1916, chap. 622; Id. § 50, as amd. by Laws of 1917, chap. 705.)
The Legislature, I think, intended to impose some punishment upon a person offending against the statute, but if the prevailing opinion in this ease is correct, it signally failed to accomplish its purpose. It declared the failure to secure compensation a misdemeanor, but as long as no accident occurred the only penalty that could be inflicted would be the recovery of an amount equal to the amount the employer would have paid for insurance in the State fund for the period of non-compliance. This penalty is to be recovered in an action brought by the Commission and the Commission is authorized for good cause shown to remit this penalty. What shall constitute good cause rests entirely in the discretion of the Commission. Therefore, we have this curious anomaly — that a person may be guilty of a misdemeanor and his liability to punishment rests in the discretion of some governmental body. This is contrary to the spirit of our laws and the ordinary methods prescribed for their enforcement. It is true that the violation of a statute which prohibits the doing of certain acts is a misdemeanor, and if this statute had remained in its original form I think the contention of the respondent herein would be correct. The punishment would be limited to the penalties prescribed in the statute. When, however, the Legislature added to the statute the declaration that the act denounced constituted a misdemeanor, I think it intended to subject an offender to the general punishment for misdemeanors prescribed in section 1937 of the Penal Law in addition to the penalties theretofore imposed.
The order appealed from should be reversed.
Blackmab, P. J., concurs.
Order of the Court of Special Sessions affirmed.