Involving, as this case does, the constitutionality of the law (chap. 532 of the Laws of 1881), under which grand and petit jurors are selected in and for the county of Albany, and unable to agree with my associates either in their conclusion that the conviction for the crime of grand larceny should be affirmed, or in the arguments assigned by them for such conclusion, it would seem to be proper that my reasons for such dissent should be stated.
On the 19th day of September, 1881, there was filed with the clerk of the county of Albany, a paper purporting to be an indictment found by a grand jury of the court of sessions of Albany county, accusing the appellant, John Petrea, of the crime of grand larceny, committed at the city of Cohoes on the 2d day of August, 1881.
On the 21th day of March, 1882, Petrea was brought before the court of sessions of Albany county to answer to the .alleged indictment. Seeking to avail himself of the consti•tutional protection (art. 1, sec. 6), that “ no person shall be ¡held to answer for a capital or otherwise infamous crime ” (■(except as is stated in the section referred to) “ unless on presentment or indictment of a grand jury,” the accused filed a -written plea or objection, which denied the finding of an ¡Indictment against him by a grand jury, and claimed as the -¿necessary corollary that the court had no jurisdiction to place 'him upon trial for an alleged infamous crime, bio objection ■was taken by the people to the form or manner of presenting ;tlie question, and the court, in rendering its decision, did not ■put ¡it upon the ground that a formal motion to quash the ¡•so-called indictment upon affidavit served had not been made, bior-would any such objections, if made, been tenable (Clare agt. The State, 30 Md., 165; Stokes agt. The State, 24 Miss., 621; State agt. Newhouse, 29 La. Ann., 824).
"Very clearly, if the facts alleged in the writing presented río the court were in truth as therein set forth, and if the legal econdlusions to be deduced from such facts were those maintain etkby'the, accused, then it must follow that he could not *179be placed upon trial, nor convicted. The paper presented was not a plea “ to an indictment,” and as such controlled by section 332 of the Code of Criminal Procedure. It admitted no indictment, and denied that one had been found. Neither was it a challenge to the array of grand jurors, nor to an individual grand juror, and therefore controlled either as to form or substance by sections 238 and 239 of the Code of Criminal Procedure. The prisoner, so far as the case discloses, was not present at the organization of the body, called a grand jury, and had no opportunity to challenge it either as a whole or in part. The labors of the men composing it were ended, but in the possession of the tribunal before which the accused was brought was a paper said to be an indictment found by a grand jury, which he was called upon to answer. The objection he mode was radical, it was aimed at the jurisdiction of the court to place him on trial, and denied that he was indicted, upon the ground that no grand jury had presented the accusation upon which he was arraigned. No objection was urged to a form, none to an informality in the exercise of a power conferred. The point made went much further. It insisted, not only that the paper was no indictment, as it was claimed to be, but that its existence and presence was a violation of the fundamental law, and the attempt to try him thereon an outrage upon his rights as a citizen. Unless, then, the court is -prepared to hold that every paper bearing the external form and impress of an indictment is one in fact, and that what it purports to be cannot be questioned by the party arraigned, then the written objection made to the alleged indictment, if true in the statement of facts, and sound in its legal conclusions, could not possibly be overruled upon the grounds that it was not such a plea as the Code (sec. 332) allowed, nor such a challenge to grand jurors as is provided for by other (338, 339) sections. The Code cannot be construed as intending to deprive a person of a great constitutional right, and if it be capable of any such construction, which it clearly is not, such a barrier would be futile, for it is a legal impossibility by a *180statute to deprive a party of his right to claim constitutional protection, or to state the proposition more clearly with reference to this case, it is impossible, under color of legislative enactment, to organize a grand jury in a mode forbidden by the constitution, and prevent, under the like color of legislation, the aggrieved party from being heard in assertion of his rights. ' Its author, and the body which adopted it as a law, intended no such absurdity as an attempt to prevent by an enactment defining and limiting the grounds of challenge to grand jurors, or the pleas to be made to an indictment when one is properly found, a preliminary inquiry by the court to ascertain whether there is, in fact, an indictment. before it, to which the accused is compelled to answer. This proposition is so elementary and fundamental ■ that its soundness will be assumed, and attention will be given to the contents of the paper filed and the proceedings thereon.
The substance of the paper submitted by the prisoner to the court was that the alleged indictment to which he was asked to plead was not an indictment in fact, because not found by a grand jury of the county of Albany. That not a single one of the individuals named and called therein grand jurors W'as a grand juror in fact, because not a solitary member of that body had been selected, summoned or called according to law, but one and all had been selected, summoned and called under and in pursuance of chapter 532 of the Laws oí 1881, which was “obnoxious to, and in contravention of, the constitution of the state of Hew York, which forbids the passage by the legislature of a private or local bill for selecting, drawing, summoning or impanneling grand jurors, and that the said chapter 532 was not reported to the legislature by any commissioner or commissioners who had been appointed pursuant to law to revise the statutes.”
By the replication to this plea, the district attorney admitted and declared that the “ said grand jury was selected and drawn pursuant tó chapter 532'of the Laws of 1881, as in said plea stated; and as to the other allegations, matters and things in *181said plea stated, he denies the same, each and all; and this he, the said district attorney, prays may be inquired of by the countrv.”
The prisoner filed a rejoinder to such replication in which he said, “ that all matters of fact in his said plea stated are true, and constitute good and sufficient reasons for sustaining the same; and the said John Petrea joins issue upon the allegations in said replication stated ; and of this he, the said John Petrea, puts himself upon the country.”
The court then held that the legal presumption was in favor of the constitutionality of the law, and that the burden was upon the prisoner to show that the act of 1881 was not one reported to the legislature by the commissioners of the Code. Whereupon the counsel of the prisoner “ offered to prove by the clerk of the senate, by the commissioners appointed to revise the statutes, by the journal of the legislature of 1881, and by the original law itself, that the law in question was not reported to the legislature by any commissioner or commissioners who are or had been appointed, pursuant to law, to revise the statutes.”
This evidence was objected to by the counsel for the people “ as immaterial, incompetent and inadmissible,” which objection was sustained and an exception taken.
The defendant then offered to prove by the same kind of evidence mentioned in his first offer, “ that the said act of 1881 was introduced in the legislature by a member of that body, who was not and never had been a commissioner appointed to revise the statute or any statute.”
This offer was also overruled, and on the motion of the people “ the balance of defendant’s plea ” was “ overruled,” and he was called upon to plead, the court saying: “ In this case we have to say that it was the defendant’s duty to file objection to the legality of this statute at the earliest practical moment after the indictment was found. He omitted to do that, and we think he should not be permitted to avail him *182self of the plea at this late day, and so hold.” To this decision there was also an exception.
So far as the case discloses, the defendant did make his objection at the first opportunity. When brought before a court to answer an accusation of crime alleged to be an indictment, it was then, and only then, his duty to interpose his objection. Prior to that time, the act of 1881, and proceedings thereunder, did not concern him any more than they did any other citizen. It was enough to do just what he did do, to wit, upon his arraignment make the point. This was not only then done in the manner already mentioned, but after his offers and written plea were overruled he renewed them by a motion and an ,offer of proof. This was also refused, and the several rulings of the court sharply present the following questions:
First. Conceding that the act of 1881 was not “ reported to the legislature by commissioners who have been appointed to revise the statutes,” is the enactment for that reason unconstitutional ?
Second. Had the accused the right to show that it had not been so reported?
Third. Conceding that the statute is unconstitutional, and that the so-called grand jury which undertook to find the alleged indictment was organized thereunder, is the defendant without remedy ?
These questions will be discussed in the order they have been stated.
In the consideration of the one first propounded, it is necessary to have clearly in mind the constitutional enactment. By section 18 of article 3 it is declared : “ The legislature shall not pass a private or local bill in any of the following cases: * * * Selecting, drawing, summoning or impanneling grand or petit jurors;” and by section 25 of the same article it is provided that “ sections seventeen and eighteen of this article shall not apply to any bill, or the amendments to any bill, which shall be reported to the legis*183lature by commissioners who have been appointed pursuant to law, to revise the statutes.”
These constitutional provisions are clear. “ A private or local bill * * selecting, summoning or iinpanneling grand or petit jurors ” could not be passed unless the same was “ reported to the legislature by commissioners who ” had “been appointed pursuant to law to revise the statutes.” There may possibly, owing to the peculiar phraseology oí section 25, be some doubt whether or not the bill to be introduced, and all amendments thereto as well, should be reported by the commissioners. The act, however, certainly requires that the bill, which, when passed and approved, becomes a law, must be reported by such commissioners, and whether amendments to such bill, in the course of its passage, must also emanate from the same source, or could be adopted by the legislature, upon the suggestion of any of its members, is of no importance to the question before us. The literal reading of the section would seem to exempt only such bill and such amendments as were reported by the commissioners from the prohibition contained in section 18; while the intention, probably, was' to give the legislature power to amend the bill when reported from the commission, as it might see lit. Speculation as to this point is, however, useless. The act of 1881 is not an amendment to a bill, but is an amendment of a law in full force, at the time of the passage of the former, and as the right of amendment, unless reported by the commissioners, existed, if at all, only whilst the report of such commission was in the form of a bill, by no possibility can section 25 be held to confer the power to so amend the work of such commission after it had become a law, as to make a valid legal enactment giving to the county of Albany a law, applicable to it, and to it only, for “ selecting, drawing, summoning or impanneling grand or petit jurors.”
Having demonstrated the proposition that the act of 1881, if it gave to the county of Albany a local jury law, which had not been reported by the commissioners appointed to *184revise the statutes, must be unconstitutional and' void, the next inquiry is, what does the act seek to accomplish ?
The second article of chapter ten of the “ Code of Civil Procedure,” as adopted by the legislature, provided a “ mode of-selecting, drawing and' procuring the attendance of trial jurors in ordinary cases,” but had no application to grand jurors. By it the supervisor, town clerk and assessors of each town made out the list, from which such trial jurors were to be drawn. By section 1041, “each ward of the city of Albany or Utica, is considered a town for the purposes of ” that “article, and the supervisor and the assessor of that ward must execute the duties of the supervisor, town clerk and assessor of a town, as prescribed ” in the preceding sections of that article. Special provision is also made in regard to other cities, but this is of no importance to the present discussion, and will not be stated.
The act (chap. 532) of 1881 undertakes to amend section 1041 of the Code by declaring that, “ in the city of Albany, the recorder of said city shall perform the duties imposed by this title ” (that is to say, the provisions of the Code in regard to the obtainment of trial jurors) “ upon the supervisor, town clerk and assessors of towns; ” and that thereafter, “ in Albany county grand jurors shall be drawn from the box containing the names of petit jurors selected for said county in the same manner as petit jurors, and hereafter no separate list of grand jurors shall be prepared for said county.”
The changes made by this statute, if valid, are radical. To the recorder of the city of Albany, only, and in contradistinction, as it is believed, of the powers of that officer in any other city in the state, is confided the duty of preparing the jury list, and from such list, when prepared by him, both the grand and petit jurors are to be drawn. Prior to its enactment, the recorder had nothing to do with the preparation of the lists from which either was selected. The preparation of that from which the trial jurors were to be obtained was by the Code of Civil Procedure devolved upon other officers, and *185that of the grand jurors, except in the city and county of ¡New York, was to be prepared by “ the supervisors of the several counties of this state * * * at their annual meeting in each year ” (3 R. S. [6th ed.], 1015; 3 R. S. [7th ed.], 2558), the two lists being separate, and the ballots for the drawing kept in separate and distinct boxes.
These new provisions applicable to the city and county of Albany alone, and to no other county of the State, very clearly make for it a local law for the selection, drawing, summoning or impanneling, or both, grand and petit jurors, and unless reported as a bill by the commissioners to amend the statutes, was clearly unconstitutional, because the passage of any such bill by the legislature was strictly forbidden. Was the bill, which is claimed to be a law, a report from the commissioners appointed to revise the statutes ? This brings us to the second question which this case involves, and that is: Had the accused the right to show that it had not been so reported ?
We have already seen that the court of sessions was powerless to try or to punish the accused for the commission of the alleged crime unless he was properly accused by a legal grand jury through and by the form of an indictment. It is useless to argue that a body of men, no matter of whom composed, has either of its own volition, or upon the summoning and call of other than the authority of the law, to resolve itself into a grand jury, and when professing to be thus organized to accuse anyone, by what it may call an indictment of an infamous crime and subject him to a trial therefor. This proposition is elementary and needs neither argument nor authority to uphold it. If this be sound, as will readily be conceded, it is proper to ask, can a legislative enactment forbidden by the constitution become operative upon the citizen because the court to which objection thereto is made requires extraneous evidence to show the act is within the constitutional prohibition ? He who seeks to uphold the judgment rendered in this cause must show that the question *186propounded requires an affirmative answer, and that courts are powerless to determine whether or- not an alleged law has been passed despite a constitutional provision forbidding its enactment. The offer upon the trial was so broad and specific as to include every species of evidence attainable upon any such subject as that involved. It included the inspection of the original bill, the journals of both houses, the evidence of the cleric of the senate, of members of the commission, and of individuals,' and all was excluded upon the ground that the party, who was then for the first time arraigned, was too late with his objection and his offer of proof in its support. If the act had professed to have been passed because reported by the commissioners, or if the inquiry proposed had impugned.the good faith of the legislature by imputing to it some motive or intent other than that evinced by the language of the enactment, the question might be more embarrassing. No proof, however, tending to impeach either legislative declaration or motive, was offered. The desire was simply to show that the alleged law, when reported as a bill, did not emanate from the only source possible under the constitution — the commissioners appointed to revise the statutes. So far from attempting any discourtesy to the legislature by an imputation upon its motives or its truth, the offer of evidence was an appeal to its own declaration upon its original bill, and to its own record of its proceedings, which it had itself approved. The offer was rejected, and the decision refusing the production and inspection of “ the original act itself ” was directly contrary to that of the court of appeals (People agt. Commissioners of Highways of Marlborough, 54 N. Y., 276); and the offer of proof by the production of the journals of the two houses was certainly proper (Purdy agt. The People, 4 Hill, 384 ; De Bow agt. The People, 1 Denio, 14; Warner agt Beers, 23 Wend., 166, see note; Cooley's Const. Lim. [4th ed.], 164). It is not necessary, however, to multiply authorities upon what seems to be self-evident. It is clearly the prerogative of the *187court to ascertain and decide whether in the passage of any bill a constitutional provision was violated. This duty and power so clearly devolve upon the court, that the enunciation thereof is sufficient. No case holding to the contrary was cited, and it is believed that none can be found. In Matter of Elevated Railroad Company (70 N. Y., 327, 351) nothing opposed to it was decided. The law under consideration in that case was general in its terms — applicable to- all elevated railroads in the city and county of New York — and its constitutionality was attacked upon the ground, that it was not what it professed to be, and really was a special statute for the benefit of a particular corporation. It was of such an attempted inquisitorial inquiry into the motives of the legislature in opposition to the words of the law, that judge Earl wrote, when he held that such an inquiry could not be tolerated; but neither he, nor any judge, has ever held that when the constitution requires a bill to be reported through a particular channel to become a valid law, that an inquiry to ascertain such fact could not be made. The application of the principle claimed by the people in this case would nullify the constitution, for then, in spite of its mandate to the contrary, there could be among the statutes of the state an unconstitutional law in fact, but still to be obeyed and enforced in spite of the constitution, because a judicial dictum forbade inquiry as to its origin. In a state, the fundamental law of which confers and limits power, no principle having such a result can be upheld. It, therefore, follows that the rejection of the offers was clearly erroneous, notwithstanding the attempt to sustain such rejection upon a ground not considered by the court below in announcing its decision.
We are now brought to the third question which this case involves. Conceding the unconstitutionality of the act of 1881, under which the so-called grand jury presenting the paper called an indictment was organized, is the defendant without remedy ? It is gravely argued and claim.ed by the *188people that he is. It is said that a body acting as a grand jury, everyone of its members having the personal, qualifications requisite for a grand juror, having presented to the court the jraper called an indictment, it became one in fact, to which the prisoner was bound to answer upon the merits, and upon which he could be tried and convicted. Is this sound ?
To state such a proposition, it would seem, is to answer it. Why, if it be correct, have any law for selecting, drawing or summoning a grand jury ? Why should not the court simply direct the sheriff, or any other officer, to go out and summon such men as he pleases, or why, even, should not the court direct him who to summon, without the cumbersome machinery of a general list of names, the drawing of the persons to serve in the presence of witnesses, and the observance of any of the safeguards of statutes? ' No one would tolerate or uphold such a procedure, for such orders by the court would not only be without the color of law, but also against its commands ; and yet a case depending for support upon a like violation of legal principles is before us. Under and by what authority was the so-called grand jury, which professed to accuse the defendant of an “infamous crime” organized. It was a body of men drawn from a list of names made out and selected by an officer to whose office no such duty belonged, and which names, in defiance of law, if the act of 1881 is unconstitutional, were improperly and unlawfully mingled in one box, from which both grand and petit jurors were drawn. Not only was the recorder of the city of Albany unauthorized to prepare any such list for that purpose, but he was positively forbidden to make it, for no person can undertake to execute the machinery of a statute, which the legislature is forbidden to adopt, without having the constitutional forbidding made applicable to himself. If, then,.the alleged indictment of the defendant and his conviction are to be upheld, they must be upon some principle which, in spite of the constitution, shall uphold in the county of Albany for the disposal and trial of this case not only, but of all others, a system for obtaining *189both grand and petit jurors created by a local statute. Is such a proposition maintainable ? The claim is that it can be by adjudged cases upon the theory that what an officer does under color of legislative authority will, as to persons affected by it, be upheld. In other words, that the machinery of a supposed law for the obtainment of jurors in the county of Albany shall be kept in operation, though forbidden by the constitution, upon a legal rule, sanctioned by judicial authority, which deprives the constitution of its power and makes inoperative and void one of its most positive commands. Let us see if any court has ever so held.
Preliminary to any detailed examination of the cases to which we have been referred, it is proper to enunciate the principles upon which they all depend, and to show their inapplicability to the one before us. Those principles are: 1st. That mere irregularity by an officer in doing that, which he is authorized to do, will not vitiate the thing done, and, second, when duties properly and legally belonging to the office of which an individual is in possession, have been performed by such incumbent, that which has been thus done will be upheld as to the parties affected thereby, and courts will not, in collateral proceedings, inquire into the right of the individual to hold the office, and to discharge the duties which lawfully appertain to such office.
Ho such principles are involved in the case before us. It is not urged that any officer has irregularly exercised powers with which he was clothed, but it is claimed that an officer has not only exercised a power unconferred, but also that as such exercise of power was under color of a pretended law, which the constitution of the state declared to be inoperative and void, that which he undertook to do was forbidden by the fundamental law' of the state, because, if the enactment of the so-called statute law is forbidden, every act in execution thereof must be equally forbidden. Heither does the accused question the title of the officer (the 3’ecorder of the city of Albany) to the office he filled. He admits that such *190officer properly held the official position, under color of which was prepared the pretended jury list, from which the so-called grand jury was drawn. The claim is, that the duty of preparing such list and the right to prepare it did not belong to the office which the recorder held, and, also, that as he undertook to prepare such list in the execution of a supposed law, the enactment of which the constitution forbade, that which he did do was in defiance of the supreme authority of the state — the will of its people embodied and declared in its constitution.
It will readily be seen, if the thread of this opinion has 'been fóllowed, that the points in this discussion have been correctly stated. In examining, then, the cases cited to sustain the conviction and judgment appealed from, no search will be made to see, if the accused can avail himself of a mere irregularity in the exercise of a power actually conferred upon an officer, nor to learn that he .must be remediless if he only questions the discharge of duties properly belonging to an office, upon the ground that its possessor had no legal title, for all this is at once conceded ; but we are gravely asked to seek for a solemn opinion, or some judicial dictum upholding as a sound legal proposition, that when an officer performs an act not appertaining to his office, and which, also, he is forbidden to do, such action when injurious to personal rights cannot be questioned, because the officer has assumed to do it, and in fact has done it. This is no strained statement. Even the non-professional mind will recognize its accuracy, and having made it, some of the cases cited will be examined.
In Friery agt. The People (2 Keyes, 424), the challenge was to the array of trial jurors. Such objections (pages 433, 434) related to the impartiality of the sheriff who summoned them, and the alleged non-observance of all required forms in the drawing. The court held that these objections were unavoidable; that the provisions of the statutes (pages 452, 453) were only “ directory to those whose duty it is to select, draw and summon. * * * * The omission to properly *191work the statute machinery by the drawing and summoning officers is a question between the people and those officers.”
The brief extracts from the opinion of Judge Weight, just given, show that in Friery’s case the officers authorized to draw and summon the jurors had performed that duty, and that the machinery of the law had been worked by the officers charged with that duty. In the case before us, if the act of 1881 be void, that which was done was entirely unauthorized. There was no “ machinery ” of any law worked, because there was no law making any; there was no list of names prepared from which the selection of so-called jurors was made, for that which is against the fundamental law, is such an absolute nullity that it has no existence as a fact capable of recognition as such by any court. That which is called by those names is improperly so designated. They may have borne the semblance and likeness of the things by which they are named, but an appeal to the fundamental law strips off the mask which gives the appearance of substance and reveals the hollowness of any such pretense.
In Carpenter agt. The People (64 N. Y., 483) the point presented was, that one Douglass Taylor, who was the de jure commissioner of jurors in and for the city and county of Hew York, had not selected the grand jury, which indicted the prisoner, but one Thomas Dunlap, who was de facto commissioner, had performed that duty. The decision of the court was, that as to the office of commissioner of jurors appertained the right of selecting, such selection was valid because made by an individual holding the office.
In Dolan agt. The People (64 N. Y., 485) the same question which arose in the Carpenter case was made, with the point added, that among the names upon the list from which the grand jury was obtained were a few which had been improperly placed thereon. The decision of the court upon the first point was similar to that made in the Carpenter case; and as to the second, it held among other things (page 493) that “ no authority can be found holding that in such a case the whole *192list is irregular and void so that none of the persons in it could be drawn for grand jurors, because a few names, without fraud or design, were, as we may assume, by accident or oversight, also put upon it.”
In the case before us there was neither “ accident or oversight.” In the preparation of the list every name was placed upon it by forethought and design, and the whole list is ' irregular and void, because made without and against the authority of law.
In Cox agt. The People (80 N. Y., 500), it was held:
“ Mere irregularities in the drawing of grand and petit jurors do not furnish a ground for reversing a conviction, unless it appears that they operated to the injury or prejudice of the prisoner; ” and that when a challenge to the array of trial jurors had been overruled, because not verified, an offer by the court, subsequently made, to receive evidence in supj>ort of such challenge, and its declination by the prisoner, precluded him “ from insisting upon the exception to the ruling,” and that he “ must be regarded as having abandoned his challenge.”
It is impossible, however, to examine in detail every case to which we have been referred. If the distinction herein before stated, between the right to inquire collaterally into the title of an incumbent of an office, and the right to question acts, which do not appertain to the office under color of which they are done, is remembered, none presents any difficulty. An individual may possess an office by an unconstitutional law, but if he only performs the acts, which the office may do, such acts, when done, are valid, because he is a defacto officer. When,, however, an individual holding an office, either defacto or de jure, or both, does an act which his office does not authorize to be done, that action cannot be sustained. A man, for example, in possession of an office of a justice of the peace, though not its rightful incumbent, may render, in a case within the jurisdiction of a justice of the peace, a judgment valid between the parties thereto, but he cannot, even *193by consent, render a valid judgment in an action which the office is forbidden to hear. He who is in possession of the office of recorder of the city of Albany may do every act appertaining to that office, but he cannot exceed the powers conferred by law upon the office, and to this proposition it is scarcely necessary to add the statement, that power attempted to be conferred by an unconstitutional statute is as much unconferred as if the attempt to confer it had not been made. The power and authority of an office must be conferred by valid laws and there is no legal principle which justifies the assumption of power upon the ground that it has been assumed. The adoption of such a rule would be utterly subversive of personal rights and place every one at the mercy of an official who chose to exercise power beyond that which had been conferred. Let. us see the result of its adoption in this case. The point has already been alluded to in the general course of argument, but a more full reference thereto is justified by its importance.
That the constitution of the state has positively forbidden the enactment of a local law operative in and applicable to the county of Albany only, for selecting, drawing, summoning or impanneling grand or petit jurors,” unless as a bill it was reported to the legislature by “ commissioners who have been appointed’ pursuant to law to revise the statutes,” will be conceded. That the section of the constitution thus forbidding such enactment was intended to be operative is known from its language, and the reason for its adoption are shown by the report of the committee (Messrs. Brooks, Hernán, Howland and Tracy) which reported it to the constitutional commission. It Was designed to secure uniformity in the administration of justice throughout the State, and to prevent the passage of a local bill, which might be aimed at its corruption. The origin of the act is also as a fact too well known to suggest any doubt as to its source, or an intimation even that it was reported from the commission to revise the statutes. If, then, the act of 1881, though within the con*194stitutional forbidding, is still to be upheld, not only for the present case, but for all others arising within the county óf Albany, upon any of the theories upon which it has been sought to be maintained (other than those upholding its constitutionality), what becomes of the constitutional provision \ Instead of being operative, it has become a dead letter — instead of being observed and kept, it has become 'of no account — instead of the constitution being the superior of the courts which it has created, judges composing them have become its superiors, and by the adoption of legal rules have made laws higher than the constitution. To no such doctrine should any judicial sanction be given, and though in this case the supposed law may have worked no individual injustice, and may never in any, it is impossible to sustain what has been done thereunder upon any such ground. That which the constitution declares shall not be done, when done, can never be upheld, even though mere abstract justice has been accomplished. The act is against public policy, subversive of government, and therefore never to be sanctioned, but should be promptly pronounced inoperative and void by judicial decision.
The proceedings down to the time of the impanneling of the alleged trial jury have now been examined, and such examination leads me irresistibly to the conclusion that the court of sessions erred in overruling the objections taken to the alleged indictment, and in excluding the evidence in support thereof. The same questions were again made upon . the impanneling of the trial jury, and the rulings were also the same. These it will be unnecessary to examine, as the reasoning already given is applicable, and the last point made — that none of the questions which have been considered are (presented by the appeal — will now be considered.
It is insisted that section 511 of the Criminal Code only brings before the court for review such matters as by section 485 form a part of the judgment-roll. Grant this, and what follows ? By section 485 “ the bill of exceptions, if there be *195one,” forms a part of such roll, and as one was made and forms a part of the roll, in this case, which shows that the proceedings and decisions hereinbefore detailed were had and made, we have all before us. It is absolutely impossible to separate the arraignment and proceedings thereon from the trial, for they were a part thereof as completely as that which transpired after the trial jury was impanneled. The arraignment, the objections to the alleged indictment, the offer of proof to sustain them, the plea to the merits, and all that then occurred, followed consecutively upon the same day, and all formed a part of one trial, the history of which we have before us, and no one exception then taken is more completely before us than any other. Section 485 of the Code speaks of no exceptions, apart from “ the bill of exceptions, if there be one,” being contained in the roll of judgment. It does, it is true, enumerate copies of certain papers as also forming a part of such roll, but as to all exceptions which come before the court on appeal, they must be contained in the bill of exceptions. Neither is it true that section 455 prevents exceptions of this character from forming a part of this bill, That section expressly provides that an exception “in the trial of an indictment * * may be taken by the defendant, to a decision of the court * * in deciding any question of law ” provided the “ substantial rights ” of the defendant are thereby “prejudiced.” It is, it seems to me, a contracted view of statutes and personal rights, which thus seeks to hamper this appeal. The ruling of the court below involved one of the most sacred rights of a man — his right to be tried for a crime only when indicted by a grand jury organized according to law. When this prerequisite to a trial, and conviction was not obtained, and a human being is in prison without this safeguard of his rights having been observed, this court should rather stretch than curtail its power to review.
It remains for me simply to enunciate in conclusion my opinion that the judgment appealed from should be reversed. It would be more pleasant to agree with associates whose *196•learning and integrity I respect, than to differ from them, -but a most careful study of the questions involved in the maintainability of the jury law of Albany county, not only in this case, but in others argued at its court of oyer and terminer, leads -me irresistibly to the conclusion that chapter 532 of the Laws of 1881, by which the jury system for that county purports to be created is unconstitutional and therefore void.