The warden, or keeper of the penitentiary, to the writ of habeas corpus, returns a copy of the commitment *91under which the prisoner was received into his custody, and by virtue of which he is held and detained. The commitment is in due form, and regular on its face. By it, it would appear, that the prisoner was duly convicted of the crime of petit larceny, at a Court of Special Sessions of the Peace, held by three police-justices—Quackenbush, Kelly, and Steers—on the 31st day of July, 1860, and that upon such conviction he was ordered and adjudged to be imprisoned in the penitentiary for the term of three months.
It was alleged on behalf of the prisoner, by way of a traverse of this return, that the said Court of Special Sessions at which the prisoner was tried and convicted, was in fact held by two of the police-justices only, viz., Justices Quackenbush and Steers; that Justice Kelly was not, in fact, present when the prisoner was arraigned, tried, or sentenced and proofs were offered, aliunde the commitment or return, to prove such allegations.
These proofs were objected to by the assistant district-attorney on the ground that in this habeas-corpus proceeding, I could not go behind the commitment; that it was of the nature of final process, and could not be impeached in this proceeding. He also insisted that two police-justices were authorized to hold a Court of Special Sessions, and therefore, that the allegations and the proofs thereof were immaterial.
The proofs were received and the questions reserved.
No objections were made by the assistant district-attorney to the form of the proofs.
It is conclusively shown, by several affidavits of parties present at the trial, and by the certificate of the clerk of the said Court of Special Sessions, that the said court at which it is alleged the prisoner was- so tried and convicted, was in fact held by only two justices; that Justice Kelly was not present when the prisoner was arraigned, plead, tried, or sentenced.
The questions, then, are—
1. Has the prisoner a right in this proceeding thus to impeach the commitment ?
2. If he has this right, do the facts shown by the affidavits and the certificate of the clerk of the Court of Special Sessions, so far impeach the commitment and the jurisdiction of the court *92which tried and sentenced the prisoner, as to entitle him to his' discharge ?
I think that both questions must be answered in the prisoner’s favor.
If two justices could not legally hold a Court of Special Sessions, but it took three to constitute such court, then the trial, conviction, and commitment of the prisoner was absolutely void; for then the alleged court that tried and sentenced him was not a court, and the two justices who tried and sentenced him had no jurisdiction whatever, and the prisoner was and is unlawfully imprisoned.
Now, it is the very office of the writ of habeas corpus to ascertain whether the prisoner is unlawfully imprisoned; and how could the prisoner in this case show that the court was illegally constituted and had no jurisdiction, except in the way he has done by proof aliunde the return or commitment ?
The prisoner could hardly estop himself from the right of showing at anytime, and at all times, a total want of jurisdiction.
It is plain by authority, as well as on principles, that the prisoner has a right to show in this proceeding, that the court, or magistrate acting as a court, who tried and sentenced him, had no jurisdiction. It is sufficient to cite The People a. McLeod (3 Hill, 669, and notes).
If, then, the two justices, who undertook alone and without a third, as a Court of Special Sessions, to try, and sentence, and commit the prisoner, could not, and did not legally constitute a Court of Special Sessions, and had no power to try, convict, or commit him, he must be discharged.
Whether the two justices did or could constitute such court and had such power, depends upon the construction of sections 8 and 9 of the act of April 16, 1858, entitled “An act to provide for the appointment of a clerk and deputy of the Court of Special Sessions, in the city and county of Mew York, and in relation to the justices of said court.” (Laws of 1858, 441, ch. 282.)
By section 8, “ The said Court of Special Sessions may be held by any three of the said police-justices, who shall sit alternately, except that one of their number may be selected to preside. And the said justices shall meet in convention and *93assign justices to hold the several terms of said court. By section 9, all acts and parts of acts inconsistent therewith, are repealed.
By section 48 of act of April 14, 1857, amending the city charter (1 Laws of 1857, 890), Courts of Special Sessions in the city of New York, may be held by any two police-justices of said city, and it is thereby declared that when so held, all the powers and jurisdiction appertaining by law to such court, shall be possessed and exercised by the officers holding the same.
The question is, was the provision in the act of 1857, repealed by the act of 1858 ?
It is almost too plain for argument that the word may in both statutes means shall. It is hardly necessary to resort to the general provision of the Revised Statutes, vol. 3, 5 ed., 869, §29, to show this. Statutes conferring criminal jurisdiction should be construed strictly. Not less than three justices can hold the court, under the act of 1858. It would certainly be extraordinary if we had two statutes on our Statute Books in force, the one authorizing Courts of Special Sessions in the city of New York to be held by two, and the other by three police-justices.
I think the provision in the act of 1857 plainly inconsistent with the act of 1858, and was intended to be, and was repealed by it; and, therefore, the prisoner must be discharged.