People ex rel. Folk v. McNulty

McNamee, J.

(dissenting). This is an appeal from an order of the Trial Term sustaining a writ of habeas corpus issued on the application of the relator who at that time was twice under arrest on a single charge of misdemeanor. The relator acknowledges that the first proceeding and arrest were regular, and were within a proper exercise of the jurisdiction of a tribunal to which exclusive jurisdiction, in the first instance, was granted by statute. But she contests the second arrest on the grounds that it was made without jurisdiction, and in any event was unwarranted by the laws of this State.

*93Information was laid before Mr. Justice Hinkley of the Supreme Court sitting as a magistrate in Albany, and a warrant was issued by him on November 5, 1938, charging a misdemeanor. The relator was arraigned before the magistrate, not before the Special Term as appellant contends. Going through the pretentious ritual of bringing to the Third Judicial District a justice of the Supreme Court from another district to sit as a magistrate in Albany, was a proceeding for which there was no warrant, either in the Constitution, the statutes of the State, or any practice known to the common law. Such a course has no place in our judicial system. These forms gave no increase of power over that which the magistrate possessed as a justice of the Supreme Court, and the justice was still just a magistrate under the statute (Code Crim. Proc. §§ 146, 147).

After arraignment and on motion of the relator, the magistrate, on November ninth, transferred the charge pending before him to the Police Court of Albany for trial, fixed bail, and directed a hearing to be had on November sixteenth. The case was set down by the Police Court for trial on December twelfth. The Attorney-General obtained adjournments, and then determined to move ” the case to an Extraordinary Term of the Supreme Court then sitting in Albany to hear cases involving violations of the elective franchise. As the Attorney-General’s brief states, “ it became evident that some appropriate form of proceeding would be necessary ” to that end; or to give, as he states it, expression to the Attorney-General’s direction.” Thereupon the Attorney-General served on the police justice notice directing the transfer of the case to the Extraordinary Term.

On December nineteenth, however, the grand jury sitting in connection with the Extraordinary Term, indicted the relator on the same charge. The relator was arraigned, pleaded not guilty, and bail was fixed, and the court adjourned to December twenty-eighth, leaving the relator in custody. And at this time no order had been entered even purporting to transfer the charge to the Extraordinary Term. Thereupon habeas corpus was obtained to relieve the relator from the second arrest, and she was accordingly discharged. It is from that order this appeal is taken.

The Supreme Court has general jurisdiction in law and equity. (State Const, art. 6, § 1.) But this jurisdiction is not automatic, or self-starting. It is to be acquired, as it is in any other court, by presenting the jurisdictional facts in a justiciable cause and in the manner required by the Constitution, the statutes, and recognized practice. The ipse dixit of any party, or of any public official, will not effect that result. And the method followed in this case, *94and before the Extraordinary Term, finds countenance in none of these.

Much reliance is placed on section 67 of the Executive Law, and references are made to the Criminal Code in the opinion of the Extraordinary Term, with the suggestions that some of these deal with the ordinary normal prosecution ” of crime, and when there has been a neglect in the ordinary administration of law,” and again when “ normally local courts of justice are allowed to prosecute misdemeanors in the first instance.” There does not appear to be any part of the Criminal Code which provides for ordinary ” or normal ” prosecutions of crime, or when there has been “ neglect ” not shown to exist, or when local courts are “ allowed ” to prosecute misdemeanors. This language, and all of these suggestions, are out of harmony with our law and recognized practice, and no authority is cited therefor.

The Criminal Code provides: This Code applies to criminal actions, and to all other proceedings in criminal cases which are herein provided for, from the time when it takes effect.” (Code Crim. Proc. § 962.) The Criminal Code does not appear to make any provision for “ notices ” by the Attorney-General as a basis for removing cases of misdemeanor from a court having jurisdiction to another court, or as a basis for ousting an inferior local court which is given exclusive jurisdiction in the first instance. I find no warrant whatever for any of the proceedings taken by the Attorney-General to remove the misdemeanor charge from the Police Court of Albany to the Extraordinary Term, or to the grand jury sitting in connection therewith. The proceedings taken are not provided for in the Code of Criminal Procedure, or by any known practice thereunder; and as Chief Judge Crane has said: The Code of Criminal Procedure establishes the practice in all criminal cases and the authority for the orders and judgments of the courts. Unless we can find there some justification for the above order it does not exist.” (People ex rel. Hirschberg v. Orange County Court, 271 N. Y. 151, 155.)

It may be observed here that the Extraordinary Term granted an order of prohibition against the police justice, which also purported to transfer the case to itself, ten days after the indictment was found and ten days after the relator had been discharged from arrest under the indictment by the order appealed from. At that time the indictment, if it were arguable that it ever had validity, had lost its force by reason of the order sustaining the writ. And prohibition is applicable only to restrain a tribunal which proceeds without or in excess of jurisdiction, and when the grievance cannot be redressed by the ordinary proceedings *95at law, in equity, or by appeal. It goes only to the question of jurisdiction; it may not be resorted to for the purpose of ousting a court which has perfect Constitutional and statutory jurisdiction, and which is proceeding in accordance therewith, as was the case here. (People ex rel. Livingston v. Wyatt, 186 N. Y. 383, 393; People ex rel. Childs v. Extraordinary Trial Term, 228 id. 463, 468; People ex rel. Cuvillier v. Hagarty, 238 id. 621; Matter of City of New York v. Maltbie, 248 App. Div. 36; affd., 274 N. Y. 464.)

It is not questioned that Albany is a second class city, and that its Police Court is validly constituted. Section 18 of article 6 of the Constitution vests the Legislature with power to confer on inferior local courts * * * such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law.” No other words of limitation are used. And when the Legislature exercised its powers given by the next paragraph of the same section, authorizing the creation of Children’s Courts, it provided: “ Nothing herein shall be construed as abridging the jurisdiction of the Supreme Court, or as abridging the authority of the Supreme Court * * * as now provided by law.” (Children’s Court Act, § 28.) Section 183 of the Second Class Cities Law prescribes that the Police Court in question shall have exclusive jurisdiction, in the first instance, of misdemeanors committed in the city. The same section of the Constitution enables the Legislature to empower these local courts to “ try such offenses without a jury.” No one would contend that a defendant may be tried in the Supreme Court for a criminal offense without a jury, except upon his consent. (Code Crina. Proc. §§ 4, 211, 222, 355.) Here is a clear constitutional departure from the common law as to the trial of misdemeanors, and a departure from the method of trial in courts of record under our Code. Thus without stretching the expression “ in the first instance,” the Police Court has plenary power under the Constitution and the statute to try the offense in question, whether the Supreme Court had jurisdiction or not. And the same section prescribes the manner in which a charge may be removed to another court for consideration by a grand jury, viz., by the method set down in sections 57 and 58 of the Code of Criminal Procedure.

When the Police Court entertained jurisdiction of the proceeding instituted before the magistrate, and proceeded therein, the case was pending in the Police Court, and that too in the exercise of its Constitutional and statutory jurisdiction. This jurisdiction was acquired and was being exercised before any attempt was made to oust the Police Court and vest jurisdiction in the Extraordinary Term. It is a rule too ancient and too universally known to require the citation of authority, that the court which first acquires *96jurisdiction will proceed in the cause to judgment, in the absence of statutory authority for removal. When the Extraordinary 'Term assumed to take jurisdiction, and to oust the Police Court, it should have been able to assign the statute under which such transfer was authorized, and then proceed in accordance with the provisions of that statute. It presumed to make the removal here without any showing either in fact or in law. The Extraordinary Term should have refused to accept jurisdiction, or to entertain a motion for removal, as it should have refused to make the baseless order of prohibition and the belated order of transfer.

It is not necessary in the circumstances here to pass on the question whether the Constitution gave the Legislature power to impair the general jurisdiction of the Supreme Court, with regard to misdemeanors. (Art. 6, § 18.) The Legislature, however, under that section, did confer on the Police Court “ such jurisdiction ” as was adequate, in the first instance, to hear and try misdemeanors committed in Albany, and no method is declared by which that jurisdiction may be set aside by the Governor or the Attorney-General or even by the Supreme Court through any proceedings which have been resorted to here.

There is late authority for the rule of practice that a prosecuting officer may not bring about the removal of a cause of misdemeanor from a Court of Special Sessions having exclusive jurisdiction, to a court of record, for consideration by a grand jury, by procuring the certificate referred to in sections 67-59 of the Code of Criminal Procedure. The certificate of removal may be issued only upon the application of the defendant. On facts identical in principle with those in this case, where an unauthorized removal was thus effected, habeas corpus issued and the defendant was discharged (People ex rel. Kohut v. Hendrickson, 249 App. Div. 528; affd., 276 N. Y. 563). In the case at bar no resort was had to any statutory method of removal, but the Attorney-General simply determined on the removal. His determination was a nullity. And finally, it is now settled law that a grand jury is without authority to indict for a misdemeanor of which a Court of Special Sessions has exclusive jurisdiction in the first instance. (People v. Monahan, 257 N. Y. 388, affg. 233 App. Div. 16; People v. Kraft, 229 id. 281.) These cases and that of People ex rel. Kohut v. Hendrickson (supra) and the decisions therein cited, are abundant authority for making the order sustaining the writ of habeas corpus, and discharging the relator.

The order should be affirmed.